MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS Referral Report No. 1 April 2017 to the Legislative Assembly of British Columbia Complaints/Enquiries: 1-800-567-3247 (250) 387-5855 Fax: (250) 387-0198 947 Fort Street PO Box 9039 Stn Prov Govt Victoria BC V8W 9A5 www.bcombudsperson.ca April 2017 The Honourable Linda Reid Speaker of the Legislative Assembly Parliament Buildings, Room 207 Victoria BC V8V 1X4 Dear Madam Speaker, On July 29, 2015 the Select Standing Committee on Finance and Government Services (“the Committee”) referred the 2012 Ministry of Health employee termination matter to me for investigation and report under section 10(3) of the Ombudsperson Act (“the Act”). On September 9, 2015 the Committee issued Special Directions under section 10(4)(a) of the Act related to their referral. In accordance with section 10(4)(b) of the Act and paragraph 7(c) of the Special Directions I have the honour to present my report into this matter. Yours sincerely, Jay Chalke Ombudsperson Province of British Columbia i MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS Executive Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi Investigative Approach Conclusion vii . . . . . . . . . . . . . . . vii 3.1  Introduction . . . . . . . . . . . . . . . . . vii 3.2  The Employment Context xv 3.3  Systemic Factors and Individual Responsibility . . . . . . . . . . . . Analytical Framework Structure of Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .xvii 1.0 / Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2.0 / Scope and Mandate of the Ombudsperson’s Investigation . . . . . . . . . . . . . . . . . 3 2.1  Introduction 3 . . . . . . . . . . . . . . . . . . . . 2.2  Investigative Mandate . . . . . . . . . . . . . 4 2.3  Ombudsperson Act 4 . . . . . . . . . . . . . . . 2.4  Chronology Giving Rise to this Referral 2.5  The Special Directions . . 6 . . . . . . . . . . . . . 7 2.6  The Government Actions Outlined in the Special Directions . . . . . . 7 . . . . . 2.7  Why Was This Investigation Conducted in Private? . . . . . . . . . . . . . . . . . . . . . 9 2.8  Obtaining and Reviewing Documentary Records . . . . . . . . . . . . . . . . . . . . . . 10 2.9  Interviews 3.0 / The Standards Applicable to Government Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 . . . . . . . . . . . . . . . . . . . . 2.10  Considering the Evidence . . . . . . . . . . 2.11  Disclosing Solicitor-Client Privileged Information in This Report . . . . . . . . 2.12  Section 17 Process 14 16 . 16 . . . . . . . . . . . . . . 17 2.13  Identifying Individuals by Name in This Report . . . . . . . . . . . . . . . . . . 18 2.14  Issues Raised before the Committee . . . 18 2.15  Matters Not Addressed in the Report . . 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 24 32 4.0 / Understanding the Ministry of Health in 2012: Background and Context . . . . . . . . . . . . . 35 4.1  Introduction . . . . . . . . . . . . . . . . . . . 35 4.2  The Ministry of Health and Pharmaceutical Policy: Historical Perspective . . . . . . . 36 4.3  Evidence-Based Initiatives in the Pharmaceutical Services Division . . . . 44 4.4  Government’s Relationships with Universities - The Research Relationships Toolkit . . . . . . . . . . . . . 51 4.5  Therapeutics Initiative . . . . . . . . . . . . 51 4.6  Public Health Epidemiology and Analysis 54 4.7  The Ministry of Health in 2012: Organizational Culture . . . . . . . . . . . . 55 4.8  Other Government Entities Involved . . . . 65 5.0 / The Complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 5.1  Introduction . . . . . . . . . . . . . . . . . . . . 69 5.2  The Complaint . . . . . . . . . . . . . . . . . . 70 5.3  The Complainant’s History with the Ministry of Health . . . . . . . . . . . . . . . 71 5.4  Rationale for Making the Complaint . . . . 73 5.5  Analysis of Complaint to Auditor General 73 5.6  The Ministry of Health Receives the Complaint . . . . . . . . . . . . . . . . . . 78 5.7  Initial Review of the Complaint . . . . . . . 78 5.8  Lack of Information from Program Areas 81 5.9  Conclusion: Initial Review of Complaint . 83 TABLE OF CONTENTS 6.0 / Ministry of Health Investigation: Establishment and Composition . . . . . . . . . . . . . 85 9.0 / Employee Dismissal Decisions and Public Announcement . . . . . . . . . . . . . . . . . . . . 155 6.1  Introduction . . . . . . . . . . . . . . . . . . . . 85 9.1  Introduction . . . . . . . . . . . . . . . . . . . 155 6.2  From Review to Investigation 6.3  Purpose of Investigation . . . . . . . . 86 9.2  Dismissal Decisions . . . . . . . . . . . 88 9.3  Evaluation of Dismissal Decisions 6.4  Ministry of Health Investigation Team Members . . . . . . . . . . . . . . . . . 88 6.5  Conclusion: Investigation Team Structure and Reporting Relationship . . 92 7.0 / Ministry of Health Investigation through the First Employment Suspensions: June and July 2012 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 7.1  Introduction . . . . . . . . . . . . . . . . . . . . 7.2  Commencement of Internal Review . 7.3  Data Suspensions 95 96 . . . . . . . . . . . . . . . . . . . 96 7.4  Gathering Evidence . . . . . . . . . . . . . . 100 7.5  Internal Review Report . . . . . . . . . . . 7.6  First Three Employment Suspension Decisions . . . . . . . . . . . . . . . . . . . . 103 110 7.7  Dr. Maclure’s Employment Suspension and Constructive Dismissal . . . . . . . . 115 8.0 / Ministry of Health Investigation Continues through the Employment Terminations: Late July to October 2012 . . . . 125 8.1  Introduction . . . . . . . . . . . . . . . . . . . 125 . . . . . . . . . . . . . 9.4  The Public Announcement . . . . . . . . . . . . . 156 169 196 10.0 / The Ministry of Health’s Response to Three Suspected Privacy Breaches . . . . . . . . . 209 10.1  Introduction . . . . . . . . . . . . . . . . . . 209 10.2  Privacy Breaches and Condoned Workplace Conduct . . . . . . . . . . . . . 210 10.3  Reporting to the Office of the Information and Privacy Commissioner . . . . . . . . 210 10.4  The Information and Privacy Commissioner’s Report F13-02 10.5  Steps in Responding to Privacy Breaches . . . . . . . . . . . . . . . . . . . . 212 218 10.6  Notifying Statistics Canada about Breach of Contract and Return of CCHS Data . . . . . . . . . . . . . . . . . . . 224 11.0 / Ministry of Health Investigation into Employees Continues after the Terminations: September 2012 to October 2013 . . . . . . . . . . . . 227 11.1  Introduction . . . . . . . . . . . . . . . . . . 11.2  Additional Interviews 227 . . . . . . . . . . . 228 . . . . . . . . . . . . . 228 8.2  Possible Privacy Breaches Discovered 126 11.3  Expansion of Scope 8.3  Further Data and Employment Suspensions . . . . . . . . . . . 11.4  Development of Storyboards . . . . . . . 230 11.5  Grievances and Arbitrations . . . . . . . 231 . . . . . . . . . 233 8.4  Deputy Minister’s Involvement . . . . . . . 128 . . . . . . 131 8.5  Second Round of Employee Interviews . 135 8.6  Report to the RCMP . . . . . . . . . . . . . . 151 11.6  Ongoing Communications with the RCMP . . . . . . . ii iii MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS 12.0 / Ministry of Health Investigation into Contractors and External Researchers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239 12.1  Introduction . . . . . . . . . . . . . . . . . . 12.2  Contractor Data Suspensions . . . . . . 12.3  Suspension and Termination of Pharmaceutical Services Division Contracts with Universities . . . . . 239 242 . . . . . . . . . . . . . . . . 286 . . . . . . . . . . . . . . . . . 291 13.2  Review by Deputy Minister Stephen Brown . . . . . . . . . . . . . . . . 292 13.3  Settlements . . . . . . . . . . . . . . . . . 13.4  Handling of Employee Belongings . . . 294 . . . . . . . . . . . . . . . . . . 301 14.2  The Investigation Conducted by the Investigation and Forensic Unit of the Office of the Comptroller General . . . . 303 14.3  The Final Report . . . . . . . . . . . . . . . 314 14.4  Conclusion: IU Investigation and Report . . . . . . . . . . . . . . . . . . . 324 14.5  Proactive Steps taken by the Ministry of Finance . . . . . . . . . . . . . 327 15.2  Coroner’s Investigation and Document on Mr. MacIsaac’s Laptop . . . . . . . . . 328 . . . . . . . 331 16.0 / McNeil Review and Report . . . . . . . . . . . . . 335 16.1  Introduction . . . . . . . . . . . . . . . . . . 335 16.2  Discussions about a Review . . . . . . . 336 16.3  Original Terms of Reference . . . . . . . 337 16.4  Public Expectations about the Review 338 16.5  Conduct of the Review and Revised Terms of Reference . . . . . . . . . . . . . 339 16.6  McNeil Review Conclusions . . . . . . . 341 16.7  Changes to PSA practices resulting from McNeil Report . . . . . . . . . . . . . 341 298 14.0 / Office of the Comptroller General Investigation and Report . . . . . . . . . . . . . . . . . . . . 301 14.1  Introduction . . . . . . . . . . . . . . . . . . 249 13.0 / Winding up the Ministry of Health Investigation and Settling the Litigation . 291 13.1  Introduction 15.1  Introduction 15.3  Fall 2014 News Conference and Apology . . . . . . . . . . 12.4  Suspension and Termination of other Ministry of Health Contracts . . . . . . . 264 12.5  Data Declarations 15.0 / Government’s Interactions with the Family of Roderick MacIsaac . . . . . . . . . . . . . . . . 327 324 17.0 / Impact on Ministry of Health Staff and Health Researchers . . . . . . . . . . . . . . . . . . . . . . . . . . 343 17.1  Introduction . . . . . . . . . . . . . . . . . . 343 17.2  Individual Impacts . . . . . . . . . . . . . . 344 17.3  Ministry of Health Impacts . . . . . . . . 346 17.4  Impact on Research, Evaluation, Educational Initiatives and Public Health Epidemiology and Analysis . . . . . . . . 352 INTRO CHAPTER 18.0 / Recommendations . . . . . . . . . . . . . . . . . . . . . . . 363 18.1  Introduction . . . . . . . . . . . . . . . . . . 363 18.2  Recommendations Pertaining to Employees, Contractors and Researchers . . . . . . . . . . . . . . . . . . 365 18.3  Systemic Recommendations . . . . . . . 371 18.4  Government’s Consideration of Recommendations . . . . . . . . . . . . . . 388 18.5  Ongoing Monitoring . . . . . . . . . . . . 388 Appendices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 389 Appendix A September 9, 2015: Special Directions Regarding Referral to Ombudsperson . . . . . . . . . . . . . . 391 Appendix B Acronyms Used in the Ombudsperson’s Report . . . . . . . . . . 395 Appendix C Government’s Relationships with Universities — Final Report, 2008 Research Relationships Tool Kit, 2010 . 403 Appendix D McNeil Report Findings . . . . . . . . . . 473 Appendix E December 14, 2015: Letter from Head of the Public Service Agency Regarding Implementation of McNeil Report . . . . . . . . . . . . . . . . 477 Appendix F Ministry of Health Organization Chart 481 Appendix G Executive Vacation Leaves – Ministry of Health . . . . . . . . . . . . . . 485 iv MISFIRE: THE 20l2 MINISTRY OF HEALTH EMPLUYMENT TERMINATIUNS AND RELATED MATTERS CHAPTER 1 EXECUTIVE SUMMARY In July 2015 the Select Standing Committee on Finance and Government Services passed a motion to “... refer the Ministry of Health terminations file to the Ombudsperson for investigation and report as the Ombudsperson may see fit; including events leading up to the decision to terminate the employees; the decision to terminate itself; the actions taken by government following the terminations and any other matters the Ombudsperson may deem worthy of investigation. The Committee trusts that his investigation can conclude in a timely manner.” The Committee subsequently issued Special Directions on September 9, 2015 that outlined the subject matter of the investigation. This report is the result of that referral from the Committee. vi vii MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS Investigative Approach Our investigation was fact-finding in nature, and this is reflected in the conclusions we reached. This investigation marked the first time in the history of the Ombudsperson that we have conducted an investigation under section 10(3) of the Ombudsperson Act. The breadth and complexity of the subject matter of the referral required a thorough and careful investigative approach. When we assessed the investigations and the decisions about employee conduct, we looked to the existing case law which describes the factors that should be considered when determining whether it is appropriate to dismiss an employee for just cause. Where necessary, we also made reference to existing government policy such as the Standards of Conduct for public service employees, the Public Service Agency’s Executive Accountability Framework and the Core Policy and Procedures Manual. We obtained millions of records from many different provincial government ministries and agencies, as well as records from other public bodies and individuals. From these records, we identified and reviewed those which were relevant to our investigation. We summonsed 130 witnesses who provided evidence to us under oath. We assessed both the documentary records and sworn testimony to develop a draft report. Each individual and authority the Ombudsperson determined may be adversely affected by the report was then given the opportunity to make representations with regard to the portion of our draft report that related to them. We took these representations into account in determining the content of the final report. Analytical Framework In the Special Directions the committee set out its expectation that we would investigate: the events leading up to the terminations, the terminations themselves, decisions to suspend and/or reinstate data access and actions taken by Government following the terminations and in doing so, make findings about the involvement of various government ministries, agencies and members of the executive council in those decisions. We interpreted these Special Directions as broadly as necessary to enable us to obtain a full understanding of the relevant issues set out by the committee, and any additional matters that we determined in the course of our investigation were necessary to examine. When assessing and drawing conclusions about government conduct we relied on the terms of the Special Directions which allow the Ombudsperson to make the findings and recommendations he considers appropriate. While the report contains a significant focus on the actions of individuals in determining what happened and why, it is important to emphasize that no individual decision and no single person is responsible for what occurred. This investigation uncovered a number of systemic problems, many of which contributed to the outcomes that occurred. Ultimately, the purpose of this report is not to lay blame. It is to provide an accounting of the facts as we found them, to identify the systemic factors that we believe contributed to the events that unfolded in 2012 and subsequently and, where appropriate, to make recommendations for redress, improvement and reconciliation. Structure of Report This report is primarily focused on factual matters - the “who, what, when and why” of the investigations and the decision-making process. It often refers to evidence we obtained under oath from witnesses who participated in the various investigations and the decision-making processes that resulted from those investigations. In many cases, we decided that it was best to let the witnesses’ evidence speak for itself. Consistent with the Ombudsperson’s role, we have also analysed the evidence and drawn conclusions about the conduct we describe. Key findings can be found at the end of Chapters 5 through 17. Based on the report and findings, 41 recommendations are made. INTRO CHAPTER Understanding the Ministry of Health in 2012: Background and Context understood by others that the initial review did not analyze or validate the complaint. We describe the development of the Pharmaceutical Services Division (PSD) at the Ministry of Health and outline what we understand to be the broader policy rationale for that division’s focus, up to 2012, on evidence-based research on pharmaceuticals and evaluation of pharmaceutical policy. We describe how PSD was structured to achieve these policy goals, and the extent to which these goals relied on the use of administrative health data. We describe some specific research initiatives that PSD supported and set out the history and evolution of the Therapeutics Initiative. Ministry of Health Investigation Establishment and Composition We then describe three existing organizational factors at the Ministry of Health that, in our view, contributed to the way in which the investigation into employee conduct unfolded. These factors include a chronic lack of clear policy direction around data use that helped foster a risk-averse approach to sharing administrative health data; a culture of suspicion about the propriety of contracting practices that emerged following an instance some years before of a criminal act in the eHealth area; and a significant number of personnel changes at the executive level in the span of two years that had a detrimental impact on the ministry’s institutional memory. Following the work of the initial review, Ministry of Health executives concluded that an investigation was necessary. That work began at the end of May 2012, when three Assistant Deputy Ministers in the ministry approved the terms of reference appointing a lead investigator who was then a director of privacy investigations on the staff of the Chief Information Officer, and other members of an investigation team. The terms of reference for the investigation did not clearly define its scope, and it quickly expanded beyond the original purposes for which it was established. The terms of reference contemplated a one month investigation completed by the end of June 2012. The investigation continued for approximately 16 months during which time numerous individuals joined and left the investigation team. This included an investigator from the BC Public Service Agency and staff from the Ministry of Health. While the investigation was represented as being external to the Ministry of Health, functionally this was not the case. Ministry of Health Investigation through the First Employment Suspensions: The Complaint June and July 2012 The Ministry of Health’s review of the allegations of employee misconduct began at the end of March 2012 when it received a copy of a complaint that had been made to the Auditor General. The complainant had a sincere belief in relation to the allegations she made, but she was uninformed and mistaken about the facts. She named specific employees and external contractors who were alleged to have engaged in wrongdoing in relation to contracting and data practices. Although this complaint was almost entirely inaccurate, the ministry did not assess its factual validity at the outset. Instead, the ministry asked a fairly inexperienced employee to conduct an initial review of the complaint. The complainant then became deeply embedded in this initial review and expanded the scope of her original complaint. The purpose of the review was to better explain the complainant’s concern, but it was not necessarily well One week after the investigation began, the Ministry of Health suspended data access for individuals identified in the original complaint. These suspensions were unrelated to the suspected privacy breaches that the Ministry of Health reported to the Information and Privacy Commissioner later that summer. Five of the initial data suspensions were not based on any evidence of improper data use that would support a valid suspicion. Before making the decision to suspend data access, the decision-makers did not properly assess and document whether, in relation to each individual whose data access was suspended, there was any evidence which, if true, posed a risk of improper use of data. The ministry did not give the individuals adequate explanations about the basis for the data access suspensions. viii ix MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS Some of the people who had their data access suspended were ministry contractors. The ministry delayed its investigation into the actions of the contractors and, as a result, their suspensions remained in place for over a year. Following the initial data access suspensions, the investigators continued to gather evidence, and they conducted informal interviews and reviewed emails and contracts. The investigators’ evidence-gathering process was undisciplined and suffered from a lack of organization, effective senior management oversight, clear policy guidance and subject matter expertise. The investigators undertook a mass review of email and categorized emails they viewed as suspicious into categories of wrongdoing. The investigators’ approach to reviewing emails was ineffective and it appeared they were focused on trying to build a case and were not engaged in a neutral fact-finding exercise. The investigators did not approach this part of their investigative work with suitably open minds and an understanding of the relevant program areas and this impaired the reliability of their work. In early July 2012 the investigators created a first draft of an Internal Review report describing the wrongdoing they believed they had uncovered. This draft report itemized a series of conclusions which were unsupported by evidence. Many of the report’s purported findings merely reiterated several of the complainant’s allegations and did not reflect the outcome of robust investigation or clear analysis. The draft Internal Review report also listed a series of recommendations related to contracting practices, data use, and the conduct of employees, but these recommendations did not arise from a careful assessment of the evidence. The draft report was amended periodically, but it continued to reflect the influence of the complainant’s perspectives and the investigation team’s unsupported belief that there was widespread misconduct within the ministry. Officials in the ministry interpreted the early reports in a variety of ways, many of which did not reflect the true stage of the investigation at that time. The conclusions set out in the drafts of the Internal Review report influenced the direction of the investigation. These same report drafts, including one that contained a “relationship web”, were used to brief senior executives within the ministry, the Comptroller General and the RCMP. They were also used to support the employment and contract terminations that followed. At the end of June 2012, the Ministry of Health, with the advice of the B.C. Public Service Agency (PSA), decided to suspend three employees, Dr. Malcolm Maclure, Dr. Rebecca Warburton and Mr. Ron Mattson. On July 17, 2012 these employees were notified that they were suspended without pay pending investigation. The PSA’s recommendation and the Ministry of Health’s decision to suspend the employment of Dr. Maclure, Dr. R. Warburton and Mr. Mattson were made without an evidentiary basis and without clear consideration of whether lesser measures were available to mitigate any perceived risks. Further, the Ministry of Health lacked the contractual or statutory authority to suspend excluded employees without pay, and as such, the suspensions were contrary to law. At the time, PSA had a long-standing practice to suspend excluded employees without pay, but this practice ran contrary to legal advice it had received. Following his suspension, Dr. Maclure asserted that the Ministry of Health had constructively dismissed him from his employment and as a result, the ministry did not formally terminate his employment. Dr. Maclure ought not to have been constructively dismissed. Ministry of Health Investigation Continues through the Employment Terminations: August-October 2012 In August and September 2012, the investigators uncovered three suspected privacy breaches and later reported them to the Information and Privacy Commissioner. At the end of July 2012, the Ministry of Health suspended data access for Ramsay Hamdi. The Ministry of Health acted reasonably when it suspended Mr. Hamdi’s data access while it made further inquiries. Throughout August 2012, the Ministry of Health suspended more employees without pay on the recommendation of the Public Service Agency. Ramsay Hamdi and David Scott were suspended at the beginning of August without pay. A few weeks later Robert Hart and Roderick MacIssac were also suspended without pay. The decisions to suspend each of these four employees resulted from a procedurally flawed and improper process. INTRO CHAPTER Mr. MacIsaac, Mr. Hamdi and Mr. Scott all worked in bargaining unit positions and thus were members of the BC Government and Service Employees’ Union. We reviewed the basis on which these employees were suspended. The Ministry of Health did not have valid grounds to conclude that these employees posed a serious risk and their suspensions were improper. Contrary to appropriate labour relations practices, the Public Service Agency did not consider whether lesser measures than suspensions could address any perceived risk to the ministry. The Public Service Agency and the Ministry of Health did not have a sufficient basis to conclude that the suspension of Mr. Hart was warranted. As with the three excluded employees suspended in July, Mr. Hart’s suspension without pay pending investigation was not authorized by a term of his employment contract or the Public Service Act and was contrary to law. In August 2012, then-Deputy Minister of Health, Graham Whitmarsh, assumed a greater role in respect of the investigation. He briefed John Dyble, Deputy Minister to the Premier and Michael de Jong, Minister of Health. He also started to meet with the investigation team on a weekly basis to receive progress reports about the investigation. Throughout August 2012, a significant part of the work conducted by the Ministry of Health investigation team was interviewing the employees under investigation as well as other employees in the ministry. These interviews were conducted primarily by the lead investigator and the PSA’s investigator, with contributions from two other members of the investigation team. We reviewed the records of these interviews and spoke with the members of the investigation team as well as some of the people who were interviewed. In conducting many of the interviews, the Ministry of Health investigation team: provided insufficient notice of the allegations made against employees did not provide employees under investigation with adequate particulars of the case against them, including in relation to appropriate document disclosure, contrary to legal advice did not display a suitably open mind did not appropriately consider the evidence the witnesses provided did not accurately characterize the information they gave to witnesses in interviews From listening to the recordings of those interviews, we found that the employees who were dismissed were generally co-operative and responsive in the interviews. While the conduct of the interviews themselves was the responsibility of the investigators, executives at the Ministry of Health and the Public Service Agency who were responsible for the conduct of the investigators did not ensure that the interviews were conducted fairly. The Ministry of Health did not provide the investigation team with a structure for conducting the interviews, or take substantive action when concerns about the interviews were brought to their attention. In addition, the Public Service Agency did not provide their staff members adequate training or policies to guide the way in which the interviews were conducted. At the end of August 2012, the lead investigator and the Director of the Investigations and Forensics Unit of the office of the Comptroller General contacted the RCMP about the ongoing Ministry of Health investigation. When they met on August 27, 2012 the RCMP told them they would not make a decision about whether to investigate until they received a final report from the government investigators and in light of the RCMP’s capacity at the time the report was received. Employee Dismissal Decisions and Public Announcement Beginning on September 6, 2012, the Ministry of Health terminated the employment of six public servants, asserting that it had just cause. The decisions to terminate the employment of Dr. R. Warburton, Mr. Mattson, Mr. Hart, Mr. Hamdi, Mr. Scott and Mr. MacIsaac were made by Deputy Minister Whitmarsh as the statutory decision-maker under section 22(2) of the Public Service Act. The ministry did not have sufficient evidentiary basis to dismiss any of the employees for just cause. We determined that none of the dismissed employees engaged in conduct sufficient to support their terminations. Furthermore, in deciding whether to dismiss any of the employees, x xi MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS the ministry gave inadequate consideration to whether their conduct had been condoned. until a final report was received from the ministry investigation. The process by which human resources advice was to be provided by PSA broke down and this contributed to the problems with the dismissal decisions. An investigative report was not prepared and separate advice about the appropriate consequences of the investigation was not provided. Furthermore, the weekly meetings comprised of many senior officials of the Ministry of Health and PSA effectively sidelined the PSA investigator and human resources specialist and disrupted the regular process. There was no good reason for the process to be as rushed as it was. The Ministry of Health’s Response to Three Suspected Privacy Breaches There was confusion about the provision of legal advice regarding the dismissals. Ministry of Justice lawyers had reviewed the dismissal letters of the excluded employees, but had not been asked by PSA or Ministry of Health to provide legal opinions on the question of just cause for dismissal for any of the dismissed employees. The Deputy Minister of Health was aware of the lawyer’s review of the letters and had a mistaken belief that legal advice on just cause had been provided. On September 6, 2012, the Ministry of Health issued a news release announcing the existence of an investigation of inappropriate conduct, contracting and data management practices in the ministry. The news release announced the four dismissals that had taken place and that three other individuals had been suspended. While the news release did not contain individuals’ names, the identity of the fired and suspended employees soon became known publicly. The news release stated the fact that the RCMP had been asked to investigate and were provided with interim results of the investigation. The decision to include the reference to the RCMP was debated by the ministry, Government Communications and Public Engagement, and Ministry of Justice up until the final moments before the public announcement was made, but Minister MacDiarmid was not told about this debate or about the legal advice the ministry received before making the announcement. Including this reference to the RCMP was misleading because the RCMP had advised the ministry that they would not even make a decision about whether to investigate As the Ministry of Health investigation continued, the investigation team discovered three suspected privacy breaches involving personally-identifiable administrative health data. The ministry believed that administrative health data had been shared improperly with three separate individuals: Mr. Mark Isaacs, a contractor who ran a company called Quantum Analytics, Dr. Bill Warburton and Mr. Roderick MacIsaac. These alleged breaches were subsequently reported to the Office of the Information and Privacy Commissioner in August and September 2012. We investigated the ministry’s understanding of these privacy breaches because they were relevant to three of the termination decisions and how the ministry handled the contract with Mr. Isaacs. The Information and Privacy Commissioner found that the three privacy breaches occurred because the ministry failed to translate privacy and security policies into meaningful business practices. The focus of the Information and Privacy Commissioner’s report was on whether the person providing the information committed a privacy breach. The recipient of the information in one of the first privacy breaches was Mr. Isaacs and he acted appropriately. In the privacy breach involving Mr. MacIsaac, he was improperly provided with the information but was authorized to receive the information and did so in his capacity as a ministry employee. He was also a PhD student who intended to obtain and use an anonymized dataset for his PhD thesis, but that was to take place at a future time. Ministry of Health Investigation into Employees Continues After the Terminations: September 2012 – October 2013 The Ministry of Health investigation continued after the dismissal decisions in September 2012. The scope of the investigation expanded to focus on additional public servants who were subjected to interviews. Many of the interviews were conducted in an unfair manner similar to what had occurred with the earlier interviews. INTRO CHAPTER In June and September 2013, government and the BCGEU settled the grievances that had been filed by Mr. Hamdi, Mr. Scott and Mr. MacIsaac following their terminations. The grievances were settled on the basis of information provided by the province to the BCGEU before the Public Service Agency recognized the significant flaws in the investigation process. As such, these employees did not have a fair opportunity to have their claims fully considered on the merits. Between September 2012 and July 2013, the lead investigator maintained regular contact with the RCMP and provided them with material that the investigation team had compiled. This included providing the RCMP with a set of discs containing personally-identifiable federal health data that the ministry held in accordance with an agreement with Statistics Canada. The ministry was, at the time, under no legal obligation to provide this information. The Ministry of Health’s decision to voluntarily provide the federal health information to the RCMP was improper and contrary to legal advice. Ministry of Health Investigation into Contractors and External Researchers While its investigation continued, the Ministry of Health conducted a parallel investigation into contractors and external researchers who were linked in some way to employees already suspected of wrongdoing. This led the ministry to make more decisions to both suspend the researchers’ individual data access and suspend and cancel a number of health research contracts. In most cases the decision to suspend access to administrative health data was made in the absence of any evidence of inappropriate conduct and based on suspicion alone. The data access suspensions caused the individuals to be unable to carry out employment or other obligations. The ministry’s decisions to suspend the contracts with the University of British Columbia and the University of Victoria that related to the work of the Therapeutics Initiative, the Education for Quality Improvement in Patient Care (EQIP) initiative and the Alzheimer’s Drug Therapy Initiative (ADTI), were made without any evidence of wrongdoing and were arbitrary. Despite the investigators’ suspicions the ministry never had, or obtained, any evidence that Dr. Colin Dormuth engaged in misconduct of any sort. The same was true for the ministry’s decision to suspend and effectively terminate its contract with Blue Thorn Research and Analysis Group Inc. Neither the investigators, nor the senior executives who made the suspension decisions, gave adequate consideration to the impacts of those suspensions on health research, ministry objectives and the livelihoods and reputations of those they targeted. In addition, the ministry unduly delayed its investigation into the concerns that led it to make the suspension decisions, thereby increasing individual and organizational harms. In 2012, the ministry had a contract with Quantum Analytics Inc. (QA) for an information tool called Quantum Analyzer, which used administrative health data to display, graph, compare and download health information in anonymized and summary form. QA was owned and operated by Mr. Isaacs. The ministry suspended and then terminated its contract with QA following the data breach in which Mr. Isaacs was involved, despite Mr. Isaacs having done nothing wrong and, in fact, having acted completely appropriately when he discovered that he was improperly provided personal health information. The ministry inappropriately continued to use his Quantum Analyzer software after purporting to suspend the contract. Winding up the Ministry of Health Investigation and Settling the Litigation In June 2013 Stephen Brown was appointed Deputy Minister of Health. Shortly after his appointment he was briefed on the investigation and began to question the usefulness of continuing the investigation. By October 2013 he had directed the investigators to discontinue the investigation. At the same time, Mr. Brown received legal advice from government’s outside counsel about the best approach to dealing with the lawsuits brought by the dismissed employees and Dr. W. Warburton. On the basis of that advice, the ministry instructed its lawyers to try to settle the lawsuits. Settlements were subsequently reached in all of the lawsuits and government’s lawyer provided opinions supporting the settlement in all of the cases. By late 2013 government had sufficient information (notwithstanding the outstanding Comptroller General report and some of the ongoing litigation) to raise serious questions about whether the ministry’s investigation had been xii xiii MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS fair. The ministry did not initiate a comprehensive review and reassessment at that time to determine whether people had been treated unfairly. When employees were suspended in July and August 2012, their personal effects were boxed up and some of the employees’ belongings were lost. The Ministry of Health did not ensure that the fired employees and one contractor had adequate opportunity to identify personal belongings from their offices. Office of the Comptroller General Investigation and Report Before its formal investigation began, the Ministry of Health contacted the Office of the Comptroller General to advise it of the complaint it had received. The Investigations and Forensics Unit (IU) of the OCG began to monitor the Ministry of Health investigation and in October 2012 commenced a formal investigation of its own to “confirm or dispel” the allegations in the original complaint. At the beginning of its investigation, the IU adopted a collaborative approach with the Ministry of Health investigation team. In April 2015 the IU produced a draft report on the matters it had investigated, which it then provided to the RCMP. The RCMP reviewed the report but declined to conduct a criminal investigation. The IU finalized its report on June 25, 2015. Overall, the IU did not satisfy the objectives set out in its investigation terms of reference. The absence of guidelines or a protocol between the IU and the ministry investigation team created objectivity risks when the two collaborated. The IU investigation also suffered from a number of gaps in its investigation process that undermined the accuracy of the conclusions contained in its report. Prior to finalizing the report, the IU did engage in a quality control process but it was not sufficiently robust. In any event, the quality control reviewer indicated the IU report was more in the nature of a summary working paper than a final report. In April 2015 the IU had provided a copy of the draft report to the Ministry of Health. The ministry failed to comment on the report before it was finalized in June 2015. This was a missed opportunity for both the IU and the ministry to identify and rectify issues with the report before it was finalized. In July 2015, after the report had been finalized and the assignment wound up, the Office of the Comptroller General was told that the Ministry of Health had concerns the IU report contained inaccuracies, based on legal advice the ministry received from its counsel that the report contained statements that were untrue, and warned of the risk of defamation if the report were to be released. The IU report was subsequently leaked to the media. After the completion of the IU’s investigation, the Ministry of Finance hired KPMG to conduct a “strategic initiatives review” of the IU. KPMG has recommended a number of steps to improve the IU. The KPMG report highlighted many of the same internal process gaps we identified. The Ministry of Finance has taken steps to begin implementing the KPMG recommendations. Government’s Interactions with the Family of Roderick MacIsaac Mr. MacIsaac died four months after he was fired from his co-op position with the Ministry of Health. He never had the opportunity to truly understand why he was fired, and after his death his family continued to search for answers. The BC Coroners Service investigated Mr. MacIsaac’s death and took possession of Mr. MacIsaac’s personal laptop. The Coroners Service obtained specialized computer recovery assistance from the RCMP who located a document written by Mr. MacIsaac that described his experience during the Ministry of Health investigation. The Coroners Service made Mr. MacIsaac’s family aware of the document but did not provide it to them. Instead, they read a redacted version of the document to them over the phone. When the laptop was returned to the family, they could not find the document until they used specialized software and wondered whether it had been deliberately deleted. We concluded neither the Coroners Service nor the RCMP deleted the document. On September 30, 2014, Mr. MacIsaac’s sister Ms. Linda Kayfish held a press conference calling for government to apologize and explain the reasons for her brother’s firing. In the days that followed, Premier Clark, Minister Lake and Deputy Minister Brown apologized for the manner in which Mr. MacIsaac had been treated. INTRO CHAPTER McNeil Review and Report Recommendations On October 3, 2014, government announced that it had asked Marcia McNeil to conduct a review of the public service response to the allegations against the Ministry of Health employees who were fired in 2012. The resulting report was credible and highlighted many of the same investigative process problems that we have found in our own investigation. However, the hurried manner in which the terms of reference of Ms. McNeil’s review were developed meant they needed to be amended shortly thereafter. That created confusion about the purpose of the review which was compounded by public statements by the Premier and Minister of Health that were over-broad in expressing the purpose and anticipated outcome of the review. Forty-one recommendations to address the findings and conclusions are set out in this report. Those recommendations fall under two broad categories: individual and systemic. Ms. McNeil’s review resulted in the Public Service Agency making a number of improvements to its investigative and advisory processes. Impact on Ministry of Health Staff and Health Researchers The impacts on individuals arising from the investigations conducted by the Ministry of Health and the Office of the Comptroller General were widespread. For those most directly involved, the investigations, together with the announcement of an RCMP investigation, resulted in fear, anxiety, loss of income and financial uncertainty, harm to reputation and careers, harm to relationships and, in some cases, health problems. The investigations also had negative organizational impacts within the Ministry of Health, some of which still exist. We recount how some employees thought the investigation and the events which followed caused a loss of productivity, morale and engagement within the ministry. The investigations also impacted public health research, evaluation, educational initiatives and analysis that the Ministry of Health was supporting in 2012. Research projects conducted within the ministry and by outside researchers were delayed or ended due to the inability to access data. Individual Recommendations The individual harms caused by the events described in this report are not easily remedied. Nonetheless, government can and should take further steps to provide remedies to these individuals. Apologies to individuals affected by government’s investigations and decisions are recommended, in addition to making an overall public apology. In recognition that its conduct has caused harm to identifiable individuals ex gratia payments to several people are recommended. Two steps to honour the memory of Mr. Roderick MacIsaac are recommended: an endowment for a scholarship for doctoral students at the University of Victoria be funded, and an annual Ministry of Health staff award for excellence in training, mentoring and supporting co-op students be established. Systemic Recommendations Recommendations that relate to the systemic issues encountered in this matter are made. Many of these systemic recommendations are aimed at preventing the events described in this report from recurring, and as such they relate to: standards for the conduct of public service investigations employment standards of conduct data access suspensions public service employment suspension and dismissal decisions obtaining and responding to legal advice BC Coroners Service policy. xiv xv MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS In addition, some of these systemic recommendations are aimed at remedying some of the broader impacts of the investigation. They include: public interest disclosure legislation organizational reconciliation in the Ministry of Health evidence based research, evaluation and decision making Conclusion The Select Standing Committee referred this investigation to our office in July 2015 with the expectation that we would be able to answer many of the significant questions that remained about the 2012 Ministry of Health investigation and subsequent events. This report describes, in significant detail, our understanding of when, why and how these events unfolded as they did. While our report has focused on a particular series of events, the circumstances of this case offer important lessons for the B.C. public service as a whole. INTRU CHAPTER XVI xvii MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS 4 / Understanding the Ministry of Health in 2012: Background and Context 5 / The Complaint 6 / Ministry of Health Investigation: Establishment and Composition OVERVIEW 7 / Ministry of Health Investigation through the First Employment Suspensions: June and July 2012 8 / Ministry of Health Investigation Continues through the Employment Terminations: Late July to October 2012 1994 1995 Mar 2006 jun 2006 Apr 2008 Therapeutics Initiative established. Reference Drug Program introduced. Office of the Auditor General releases Managing Pharmacare report. National Pharmaceuticals Strategy Progress Report co-chaired by Minister of Health George Abbott. Pharmaceutical Task Force Report released. Jul 17, 2012 Jul 16, 2012 Jul 16, 2012 Jul 6, 2012 Dr. Maclure, Dr. R. Warburton and Mr. Mattson suspended from employment. Government Communications and Public Engagement prepares information note with key holding messages. Dr. W. Warburton’s contract with Ministry of Health terminated. Ministry of Health investigation team completes first draft of Internal Review report. Jul 18, 2012 Aug 1, 2012 Jul 27, 2012 Ministry of Health investigation team completes second draft of Internal Review report. Mr. Hamdi and David Scott are suspended from employment. Ramsay Hamdi’s data access suspended. Aug 3, 2012 Deputy Minister Graham Whitmarsh briefs Minister of Health Michael de Jong. Sep 17, 2012 Sep 19, 2012 Sep 19, 2012 Ministry of Health suspends contract with Quantum Analytics. Ministry of Health directs universities to suspend all work on Therapeutics Initiative and Alzheimer’s Drug Therapy Initiative contracts. Sep 13, 2012 Ministry of Health investigation team discovers third possible data breach. Ministry of Health suspends contract with Blue Thorn Research and Analysis Group. Oct 3, 2012 OCt 22, 2012 Oct 25, 2012 Oct 30, 31 & Nov 5, 2012 Nov 6, 2012 Comptroller General signs terms of reference to begin the Investigation and Forensic Unit investigation. Dr. Rebecca Warburton is dismissed. RCMP notes indicate no information yet received from Ministry of Health. Ministry of Health sends data demand letters to former employees, contractors and external researchers. Ministry of Health terminates contract with Resonate Solutions Inc. Aug 25, 2014 Jun 12, 2014 Mr. Mattson and the province litigation settlement announced. Dr. Maclure and the province settle litigation. Feb 25, 2014 OCt 4, 2013 Mr. Hart and the province settle litigation. Final draft of Internal Review report completed. Oct 2013 Ministry of Health investigation ends. Sep 30, 2014 OCt 3, 2014 Oct 3, 2014 OCt 8, 2014 Mr. MacIsaac’s sister holds news conference seeking an apology and explanation for her brother’s firing. Minister of Health Terry Lake apologises publicly on behalf of government. Marcia McNeil review announced. In the legislature, Premier Christy Clark apologises on behalf of government to Mr. MacIsaac’s family. xviii 9 / Employee Dismissal Decisions and Public Announcement 10 / The Ministry of Health’s Response to Three Suspected Privacy Breaches 11 / Ministry of Health Investigation into Employees Continues after the Terminations: September 2012 to October 2013 Jul 2009 Ministry of Finance releases report on procurement and contract management practices in the Ministry of Health. 12 / Ministry of Health Investigation into Contractors and External Researchers 13 / Winding up the Ministry of Health Investigation and Settling the Litigation 14 / Office of the Comptroller General Investigation and Report 15 / Government’s Interactions with the Family of Roderick MacIsaac 16 / McNeil Review and Report Mar 21, 2012 Mar 30, 2012 Office of the Auditor General receives anonymous complaint alleging wrongdoing in the Ministry of Health. Ministry of Health complaint reviewer begins gathering information. May 16, 2012 Ministry of Health Assistant Deputy Minister contacts Comptroller General about complaint. Jun 11, 2012 Jun 7, 2012 May 31, 2012 Data access suspended for Dr. William Warburton. Data access and signing authority suspended for Dr. Malcolm Maclure, Dr. Rebecca Warburton and Ron Mattson. Data access suspended for Dr. Colin Dormuth. Terms of reference for Ministry of Health investigation team approved. AUg 15, 2012 Aug 3, 2012 Lead investigator discovers possible data breach. Second possible data breach discovered soon thereafter. Mr. Whitmarsh briefs Deputy Minister to the Premier John Dyble. Aug 27, 2012 Lead investigator and Investigation and Forensic Unit Director of the Office of the Comptroller General meet with RCMP. Aug 28, 2012 Aug 31, 2012 Co-op student Roderick MacIsaac suspended from employment. Robert Hart suspended from employment. Sep 13, 2012 Sep 6, 2012 Sep 6, 2012 Aug 31, 2012 Robert Hart dismissed. Public announcement of referral to RCMP and terminations. Mr. Mattson, Mr. Hamdi, Mr. Scott and Mr. MacIsaac dismissed. Education for Quality Improvement in Patient Care contract expires. Dec 10, 2012 Jan 8, 2013 Jan 14, 2013 Feb 14, 2013 Feb 21, 2013 Ministry of Health provides Canadian Community Health Survey data to RCMP. Mr. MacIsaac is found dead. Coroners Service investigates. Government issues news release about data breaches. Lead investigator provides RCMP with emails. Ministry of Health terminates contract with Quantum Analytics. Sep 10, 2013 Mr. Hamdi’s grievance settles. Aug to Sep 2013 Ministry of Health begins process to reinstate data access privileges to individuals whose data had been suspended. Jul 17, 2013 & Aug 14, 2013 Jun 25, 2013 Feb 25, 2013 Lead investigator provides university records to RCMP. Mr. MacIsaac’s and Mr. Scott’s grievances settle. Final Ministry of Health investigation team interview of Ministry of Health employee. Dec 19, 2014 June 25, 2015 Dec 29, 2015 Feb 2016 Ms. McNeil’s report is made public. Final report by the Investigations and Forensic Unit provided to Comptroller General. Drs. R. and W. Warburton and the province litigation settlement announced. The government learns the Investigations and Forensic Unit report was leaked to the media. XIX MISFIRE: THE 20 2 MINISTRY OF HEALTH EMPLOYMENT TERMINATIUNS AND RELATED MATTERS CHAPTER 1 1.0 / INTRODUCTION At about 2:30 p.m. on September 6, 2012, newly appointed Minister of Health Margaret MacDiarmid held a news conference to announce that her ministry had “asked the RCMP to investigate allegations of inappropriate conduct, contracting and data-management practices involving ministry employees and drug researchers.”1 The minister announced that an internal investigation had resulted in four employees being fired and three more being suspended.2 In addition, the contracts of two contractors were suspended and later cancelled. All access to data and research on drug and evidence development in the Pharmaceutical Services Division of the Ministry of Health were suspended, pending the outcome of the investigation. 3 Government indicated this was a serious situation that had been uncovered through an internal investigation. The minister stated that she was “profoundly disappointed” to be dealing with this “very concerning set of circumstances.”4 In the more than four years since that announcement, the There have been reports issued related to certain aspects individuals impacted by these decisions, including their of the matter. A report released by the Information and families and colleagues, suffered significantly. Although Privacy Commissioner in June 2013 detailed apparent data government settled all legal proceedings with the fired breaches that had been reported to that office by the employees, significant questions about the firings re- Ministry of Health.5 A review report by outside lawyer mained. Without clear information about why the firings Marcia McNeil, delivered to the government in December occurred or about who made those decisions, various 2014, shed some light on the internal investigation that theories have emerged in the public discourse. led to the employee termination decisions, pointing to a process that was “flawed from the outset, as it was embarked upon with a pre-conceived theory of employee misconduct.”6 1 Ministry of Health, “Ministry of Health taking immediate steps to respond to investigation,” news release, 6 September 2012. 2 Two of the three suspended employees were fired soon after. A third commenced litigation for constructive dismissal, which lawsuit was eventually settled. 3 Ministry of Health, “Ministry of Health taking immediate steps to respond to investigation,” news release, 6 September 2012. 4 Andrew MacLeod, “Research Stopped by Ministry Might Have Cut Big Pharma Profits,” The Tyee, 8 September 2012. 5 Office of the Information and Privacy Commissioner, Investigation Report F13-02: Ministry of Health, 2013 BCIPC No. 14, 26 June 2013. 6 Marcia McNeil, Investigatory Process Review: 2012 Investigation into Employee Conduct in the Ministry of Health, 19 December 2014, 34. 1 2 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS Ms. McNeil’s report did not, however, answer lingering questions about who made the termination decisions and whether the investigation and the resulting firings were justified. News reports in March 2016 about a leaked 2015 report completed by the Office of the Comptroller General raised further questions about why the government had settled with these individuals when this internal report had, perhaps, found wrongdoing after all. These and other questions prompted the Select Standing Committee on Finance and Government Services to refer this matter to the Ombudsperson in the following motion passed on July 29, 2015: … refer the Ministry of Health terminations file to the Ombudsperson for investigation and report as the Ombudsperson may see fit; including events leading up to the decision to terminate the employees; the decision to terminate itself; the actions taken by government following the terminations and any other matters the Ombudsperson may deem worthy of investigation. The Committee trusts that his investigation can conclude in a timely manner. 7 This report starts out by situating the 2012 Ministry of Health investigation in context. It describes the work of the Pharmaceutical Services Division and highlights underlying organizational cultural factors within the ministry that affected the investigation from the outset. It describes and assesses the events that led to employee and contractor suspensions and terminations, including the complaint that triggered the ministry’s internal investigation and the investigation itself. Suspensions of data access are described. The subsequent investigation conducted by the Office of the Comptroller General is also examined. Finally, this report describes the impacts of the investigations: on the individuals directly affected, on the public service and on the ability of the Ministry of Health and external researchers to carry out work in the public interest. 7 The investigation is described in Chapter 2. What happened in 2012 and after does not lend itself to a straightforward narrative. Problems were encountered during multiple stages of various investigations and resulting government actions. There were key points where, had different decisions been made, certain outcomes would have changed. However, there is no single failing in public administration that made the events unfold as they did. It would be simplistic to say that had any one event not happened that the matter would have ended then and there. Rather, one problem often built on another. Consistent with the lack of a single cause of the events that transpired, our investigation revealed multiple opportunities for improvement in public administration. It is to this end, along with redress for the individuals impacted, that the Ombudsperson’s recommendations are directed. While many of the findings in this report are specific to a particular government ministry or agency, the conclusions and recommendations in this report hold important lessons for the public service as a whole. CHAPTER 2 2.0 / SCOPE AND MANDATE OF THE OMBUDSPERSON’S INVESTIGATION 2.1 Introduction The scope of our investigation is defined by the Ombudsperson Act and the referral issued by the Select Standing Committee on Finance and Government Services (the Committee) pursuant to section 10(3) of the Ombudsperson Act on July 29, 2015. 3 4 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS 2.2  Investigative Mandate 2.3  Ombudsperson Act Section 10(3) of the Ombudsperson Act provides that “the Legislative Assembly or any of its committees may at any time refer a matter to the Ombudsperson for investigation and report.” The Ombudsperson Act defines the legal parameters of our investigation that outline: our requirement to maintain confidentiality unless disclosure of information is permitted by the Act 1 On July 29, 2015, the Select Standing Committee on Fi- our information-gathering powers, including the abilnance and Government Services (the Committee), a comity to summon and examine individuals under oath 2 mittee of the Legislative Assembly consisting of members from both elected parties, adopted a motion under section our requirement to provide notice to adversely affected individuals and authorities, and provide an 10(3) of the Ombudsperson Act to: opportunity to respond, before we finalize our report … refer the Ministry of Health terminations file and recommendations 3 to the Ombudsperson for investigation and reThe Ombudsperson Act provides that the “Ombudsperson port as the Ombudsperson may see fit; including may receive and obtain information from the persons and events leading up to the decision to terminate the in the manner the Ombudsperson considers appropriate.”4 employees; the decision to terminate itself; the The evidentiary rules that apply to our investigative proactions taken by government following the termincess are different from those of a judicial process. We may ations and any other matters the Ombudsperson receive and accept evidence that would not be admissible may deem worthy of investigation … in a court, and the Ombudsperson may determine his own Section 10(4) states that the Ombudsperson “must inves- procedures for staff to exercise the powers contained in tigate the matter referred under subsection (3), so far as the Act. it is within the Ombudsperson’s jurisdiction and subject to any special directions, and report back as the Ombuds- This report makes findings of fact and draws conclusions about government and individual conduct. However, beperson thinks fit.” cause the evidentiary rules that apply to our investigaOn September 9, 2015, the Committee unanimously issued tions are different from what would apply to a court, none Special Directions Regarding Referral to Ombudsperson of these findings can or should be taken as findings of (the Special Directions). criminal or civil liability. Thus, our findings of fact are not While defining in significant detail the terms on which the necessarily the same as what a court would find.5 Nor do Committee expected the investigation to proceed, the the Ombudsperson’s opinions about legal issues have the Special Directions expressly provided that they are not same legal effect as a finding of law made by a court or intended to limit “the matters the Ombudsperson con- adjudicative body. An Ombudsperson’s function is unique, siders appropriate to investigate arising from the Com- and has been broadly articulated by the Supreme Court mittee’s referral.” The Special Directions also recognize of Canada: the Ombudsperson’s right to “control his process, develop … [the Ombudsperson’s] powers of investigation an investigation plan and carry out his procedures in the can bring to light cases of bureaucratic maladminfashion he considers necessary or appropriate.” istration that would otherwise pass unnoticed. The Ombudsman “can bring the lamp of scrutiny 1 Ombudsperson Act, R.S.B.C. 1996, c. 340, s. 9. 2 Ombudsperson Act, R.S.B.C. 1996, c. 340, s. 15. 3 Ombudsperson Act, R.S.B.C. 1996, c. 340, s. 17. 4 Ombudsperson Act, R.S.B.C. 1996, c. 340, s. 15(1). 5 A similar caveat applies to public inquiry reports: see Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System in Canada), [1997] 3 S.C.R. 440. CHAPTER 2 to otherwise dark places, even over the resistance of those who would draw the blinds” … the powers granted to the Ombudsman allow him to address administrative problems that the courts, the legislature and the executive cannot effectively resolve. 6 As part of the ordinary course of the Ombudsperson’s work, section 23 of the Ombudsperson Act articulates the standards on which the Ombudsperson reviews, assesses and draws conclusions about a matter under investigation. As described by the Supreme Court of Canada, the powers of the Ombudsperson include but go beyond assessing whether government action was contrary to law. The Supreme Court of Canada has recognised that section 23 of the Act “speaks of determinations by the Ombudsman that something the government did was ‘unjust,’ ‘oppressive,’ ‘based in whole or in part on a mistake,’ brought about through ‘arbitrary, unreasonable or unfair procedures’ or ‘otherwise wrong.’”7 Section 23 also empowers the Ombudsperson to determine that something occurred because “there was unreasonable delay in dealing with the subject matter of the investigation.” These assessments necessarily require the Ombudsperson to make value judgments about whether actions taken reflected sound public administration. Their purpose is precisely to allow the Ombudsperson to address the kinds of “maladministration, abuse of authority and official insensitivity” that may not be readily amenable to identification in a court of law: British Columbia (Development Corp.) v. British Columbia (Ombudsperson), [1984] 2 S.C.R. 447 at 459. As the Supreme Court of Canada stated in that case: Read as a whole, the Ombudsman Act of British Columbia provides an efficient procedure through which complaints may be investigated, bureaucratic errors and abuses brought to light and corrective action initiated. It represents the paradigm of remedial legislation. It should therefore receive a broad, purposive interpretation consistent with the unique role the Ombudsman is intended to fulfil. 8 Consistent with this, the Ombudsperson upholds and applies a broader conception of the principles of “fairness” than might be applied by a court. Courts, which are often concerned with defining minimum legal standards of due process, may not provide recourse to individuals for all “bureaucratic errors and abuses” that might arise from government action. Similarly, where court remedies exist they may not fully identify or resolve the root causes of administrative unfairness or provide avenues for corrective action. This further supports the role of the Ombudsperson to go beyond assessing whether government actions might be defensible in a court action, or finding that if government acted appropriately simply because its actions did not violate the law. It also means this report does not shrink from making a recommendation merely because a court might not order the same result. Consistent with the Act and the Ombudsperson’s remedial role the Ombudsperson is entitled to provide an assessment of the fairness of government’s conduct in this case and make recommendations for individual remedies and for corrective action to improve public administration as a whole. To the trained legal mind, all this evokes dangers of uncertainty and even subjectivity. But the legislators who created Ombudsperson offices in various jurisdictions recognized in their wisdom that appointing an individual familiar with government, and entrusting that individual to conduct these broad assessments and make the recommendations that flow from them, is an essential part of our complex public administration. As recognized by the Supreme Court of Canada, the Ombudsperson function ensures that citizens have access to an independent officer who looks at government more broadly than a court would do, and can assess its behaviour and make recommendations so as to encourage, on an ongoing basis, a “more humane system of government.” In short, an Ombudsperson is a unique officer, with a unique function. He is not a court or an adjudicator. His role is to offer his opinions on government actions, including but going beyond whether those actions were contrary to law, and to make recommendations with the prospect 6 British Columbia Development Corporation v. Friedmann (Ombudsman), [1984] 2 S.C.R. 447 at 461. 7 British Columbia Development Corporation v. Friedmann (Ombudsman), [1984] 2 S.C.R. 447 at 468. In other jurisdictions, these standards form part of the broader concept often described as “maladministration.” 8 British Columbia Development Corp. v. Friedmann (Ombudsman), [1984] 2 S.C.R. 447 at 463. 5 6 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS that if those recommendations are accepted, the result will be better both for government and for those it serves. Section 10(5) of the Ombudsperson Act provides that sections 23 to 26 of the Act do not apply to an investigation that is referred to our office under section 10(3) by the Legislature or one of its committees. Section 10(5) recognizes that where a legislative committee initiates an investigation, and the Ombudsperson is reporting back directly to the committee, our usual statutory procedure – a procedure that involves reporting directly to a particular authority (s. 23), asking the authority to report back (s. 24) and then potentially taking the matter up with Cabinet and the Legislative Assembly only if we are not satisfied with a response (ss. 25, 26) – is not applicable. Nonetheless, the content of the review standards set out in section 23 provides a relevant and useful framework within which to identify and articulate wrongs when they arise. This was expressly referenced in the Special Directions, where the Committee recognized the Ombudsperson’s independent mandate “to make the findings and recommendations he considers appropriate in accordance with his usual review standards” [emphasis added]. As such, throughout this report, when making findings about government conduct, we have used the content of section 23 to inform the standards applied to our assessments of the information reviewed. Incorporating section 23 into the analytical framework has enabled us to rely upon and maintain consistency with our existing standards of review, as articulated in the Office of the Ombudsperson’s 2003 Administrative Code of Justice. Thus, in the context of this report, the language of section 23 is used when describing the instances of maladministration set out in this report. 2.4  Chronology Giving Rise to this Referral On July 3, 2015, Minister of Health Terry Lake wrote to Scott Hamilton, Chair of the Select Standing Committee on Finance and Government Services, requesting that the Committee refer the 2012 Ministry of Health terminations to the Ombudsperson under section 10(3) of the Ombudsperson Act. On July 7, 2015, the Ombudsperson wrote to the Committee identifying a number of matters related to his investigative powers that needed to be addressed before the matter is referred to the Ombudsperson. On July 8, 2015, Attorney General Suzanne Anton wrote to the Committee with some observations regarding the July 7, 2015 Letter. On July 15, 2015, The Deputy Attorney General Richard Fyfe and the Ombudsperson attended separately before the Select Standing Committee to answer questions about the potential referral. On July 16, 2015, Attorney General Anton wrote to the Committee to confirm that work was underway on a proposed amendment to section 19(2) of the Ombudsperson Act as identified in the Ombudsperson’s July 7, 2015 letter to the Committee. On July 21, 2015, the Ombudsperson Amendment Act, S.B.C. 2015, c. 30 received royal assent (to be brought into force by regulation). On July 27, 2015, Ramsay Hamdi, Dr. William Warburton, Dr. Rebecca Warburton, David Scott, Dr. Malcolm Maclure, Linda Kayfish, Ron Mattson and Robert Hart made a written submission to the Committee with a list of questions that should be considered. All this having been said, the Special Directions issued by the Committee make it clear that the Ombudsperson’s role is to investigate and report on the events in this case On July 29, 2015, on division, the Committee resolved to: broadly. Consequently, in order to report fully on the mat… refer the Ministry of Health terminations file ter referred by the Committee we have applied a more into the Ombudsperson for investigation and reclusive approach that has enabled this report to recognize port as the Ombudsperson may see fit; including those instances when government and individuals have events leading up to the decision to terminate acted reasonably and appropriately, and when they have the employees; the decision to terminate itself; fallen short of the standards we would have expected the actions taken by government following the them to apply. terminations and any other matters the Ombudsperson may deem worthy of investigation. The CHAPTER 2 Committee trusts that his investigation can conclude in a timely manner. terminations. We investigated government’s decision to refer the matter to the RCMP, and the decision to anOn September 9, 2015, the Committee unanimously re- nounce that fact publicly. We investigated government’s solved to issue Special Directions to the Ombudsperson. decisions to suspend and reinstate data access for employees and for external researchers. We determined that These special directions: certain aspects of government’s involvement with both describe the actions to be completed by government the Alzheimer’s Drug Therapy Initiative and the Therato facilitate the Ombudsperson’s investigation; peutics Initiative were related to the primary issues under outline the scope of the investigation, subject to the investigation, and, to the extent relevant, we included the Ombudsperson’s discretion; Ministry of Health’s treatment of these programs in our investigation. describe the expected reporting process for the Ombudsperson’s final report 9 On July 27, 2015, before the Committee referred this On September 10, 2015, the Ombudsperson Amendment matter to our office, Ramsay Hamdi, Robert Hart, Linda Act, 2015, S.B.C. 2015, c. 30 was brought into force by B.C. Kayfish, Dr. Malcolm Maclure, Ron Mattson, David Scott, Dr. Rebecca Warburton and Dr. William Warburton wrote Regulation 170/2015. to the committee members.10 Their letter outlined the matOn February 23, 2016, Government issued a legal fee ters they believed should be the subject of inquiry. Many of indemnity available to (1) individuals summonsed to attend the questions listed in the letter are encompassed within an interview with the office of the Ombudsperson and (2) the Special Directions that were later established by the individuals who receive a notice under section 17 of the Committee. Ombudsperson Act that there may be sufficient grounds for making a report or recommendation that may adversely 2.6  The Government Actions affect that individual. 2.5  The Special Directions The Special Directions issued by the Committee on September 9, 2015, complement the investigative framework set out in the Ombudsperson Act by establishing the parameters of this investigation. Section 4 of the Special Directions describes certain matters that we were required to consider (subsections 4(a), (b), (c) and (e)), and additional matters that we had the discretion to consider, if we determined they were related to the rest of the investigation (subsection 4(d)). Outlined in the Special Directions The Special Directions issued by the Committee listed six conditions on which its referral to our office was predicated. These six steps were collectively described as the “government actions.” Those actions were implemented by government as detailed in the following table: The content of the Special Directions meant that the primary focus of our investigation was on determining how, and why, the terminations occurred. We examined the role of government in events leading up to the terminations, the reasons for and evidence underlying the termination decisions, and steps taken by government following the 9 See Appendix A for the complete Special Directions. 10 This letter can found on the Legislative Assembly website at . 7 8 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS TABLE A: SPECIAL DIRECTIONS ISSUED BY THE COMMITTEE Special Directions Government Action 3(a) Proclaim into force the Ombudsperson Amendment Act, 2015, S.B.C. 2015, c. 30 Ombudsperson Amendment Act, 2015, brought into force by B.C. Reg 170/2015, effective September 10, 2015 3(b) Provide the Ombudsperson with complete access to all required and relevant information, without limitation, in accordance with established protocols Provided access to all requested records, as described in section 2.8 3(c) Apply the Protocol Agreement between the Ombudsperson and the Government of British Columbia (2011), covering written and electronic records described in s. 18 of the Ombudsperson Act, to all matters covered by s. 18 including oral statements Disclosure Agreement (Cabinet Privilege – Oral Statements) between Ombudsperson and Government of British Columbia signed October 15, 2015; see section 2.8.2.1.2 3(d) Apply the existing Memorandum of Understanding between the Ombudsperson and the Government of British Columbia relating to legal advice, to ensure that the Ombudsperson has access to all relevant legal advice provided to Government in relation to the subject matter of this referral See sections 2.8.2.1.1 and 2.11 3(e) Release terminated employees and contractors from any confidentiality provisions including those entered into as part of the resolution of any litigation, in order to support their full participation in the investigation Completed January 2016 3(f) Approve the budget recommended by the Committee arising from this referral Completed for fiscal years 2015/16 and 2016/17 CHAPTER 2 2.7  Why Was This Investigation Conducted in Private? The privacy of investigations also serves other interests, including the interconnected interests of witness privacy and the investigation’s ability to collect reliable evidence. At the most basic level, this investigation was conducted From a privacy perspective, the Ombudsperson’s investiin private because the law, as set out in section 9(6) of gative process protects all witnesses from having to give the Ombudsperson Act, required that this investigation be their evidence in the public spotlight, which in today’s conducted in private. The private nature of an Ombuds- world includes the potential for that person’s image or person investigation is a central feature that distinguishes evidence to be broadcast in real time, and recorded for 14 an Ombudsperson investigation from a process such as a all time, in both broadcast and social media. Instead of civil trial or a public inquiry. The requirement to conduct allowing for indiscriminate publicity during the informainvestigations in private is not only a central feature of tion-gathering process, the Ombudsperson model allows the B.C. statute, it is a common feature of Ombudsperson the Ombudsperson to make more balanced, fully informed decisions about who should be named in the final report legislation across Canada.11 under s. 10(3) and what information needs to be highSection 9(6) of the Ombudsperson Act allows the Omlighted with regard to a particular person’s involvement. budsperson to make an exception to the privacy of an investigation where he considers that “there are special From an investigative integrity perspective, the Ombudscircumstances in which public knowledge is essential in person model also rejects the view that the only way to order to further the investigation.” Importantly, under this obtain reliable information is in an adversarial context, statutory test, public knowledge must be essential to fur- with rooms full of lawyers cross-examining witnesses in ther the investigation. This provision is not appropriately the public spotlight. The Ombudsperson model proceeds used to turn a private investigation into a public inquiry on the premise, confirmed by experience, that witnessbecause some would prefer to see the investigation taking es are just as – if not more – likely to provide full and place in real time. Where and to the extent that public reliable information when they are doing so in a setting knowledge is not necessary to further the investigation that is private, less formal and less threatening. A private itself, as was the case here, the Ombudsperson Act re- investigation, being an investigation, also allows an Ombudsperson to follow the evidence wherever it leads. As quires that privacy of the investigation must prevail. described by the Ombudsman of New South Wales, by What are some of the benefits of a private investigation conducting an investigation in private, the Ombudsperson as compared with adjudicative or public inquiry processes? can “refine (and enlarge) the scope of an investigation as As the Supreme Court of Canada has recognized in the it proceeds, in response to the issues being raised by the leading decision regarding Ombudsperson investigations, parties and the information being analysed.”15 “litigation can be costly and slow.”12 Further, because the Ombudsperson “often operates informally, [the Ombuds- Finally, a private investigation is best aligned with the person’s] investigations do not impede the normal pro- Ombudsperson’s fundamental purpose, which is not to adjudicate issues of liability or legal fault, but to assess cesses of government.”13 government conduct and make recommendations under 11 For example, the Ontario Ombudsman Act, R.S.O. 1990, c.0.6, s. 18(2), Manitoba Ombudsman Act, C.C.S.M. c. O45, s. 26, and Alberta Ombudsman Act, R.S.A. 2000, c. O-8, s. 17(1), contain identical provisions, stating, “every investigation by the Ombudsman under this Act shall be conducted in private.” 12 British Columbia Development Corporation v. Friedmann (Ombudsman), [1984] 2 S.C.R. 447 at 460. 13 British Columbia Development Corporation v. Friedmann (Ombudsman), [1984] 2 S.C.R. 447 at 461. 14 See Eltis, The Judicial System in the Digital Age: Revisiting the Relationship between Privacy and Accessibility in the Cyber Context (2011), 56 McGill L.J. 289; Saskatchewan Information and Privacy Commissioner, Administrative Tribunals, Privacy and the Net . 15 New South Wales Ombudsman, Operation Prospect, Volume 1 (Sydney, NSW: NSW Ombudsman, December 2016), iii. 9 10 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS the basic standards of government decency provided for in section 23 of the Ombudsperson Act. We concluded shortly after work began that an independent investigation into these matters could not be limited to the documents that government had determined were The drafters of the Act clearly believed that a private investigation, together with a power to make public rec- relevant. A thorough and impartial examination of how ommendations (instead of orders), was the best way for the Ministry of Health’s investigation had been conducted the Ombudsperson to engage government and to elicit would require, at a minimum, access to all of the material that the 2012 investigation team had obtained for their positive systemic reform. own purposes. We would also require similar disclosure from other involved agencies, including the Public Service 2.8  Obtaining and Reviewing Agency, the Office of the Comptroller General, and the Ministry of Justice. Access to email records and electronic Documentary Records drives and folders would also be required. The Ombudsperson Act provides broad powers to obtain It became apparent that this investigation would involve a records that relate to an investigation. The Ombudsperson volume of records that was, for this office, unprecedented. can obtain records that are in a person’s possession or As a result, one of our earliest priorities was to identify control, “whether or not that person is a past or present and secure the resources necessary to effectively process member or employee of an authority and whether or not and review this volume of records. We also had to ensure the document or thing is in the custody or under the control that the confidentiality and impartiality of our investigaof an authority” (Ombudsperson Act, s. 15). tion would not be compromised. In this investigation, the vast majority of the records came To determine the proper approach to this challenge, we from the provincial government, as described below. A reviewed the tools and approaches used in major public smaller number of records came from other sources. Given inquiries and large-scale litigation and investigations, and the huge volume of records received, we used a specialthe best practices that have been established in those ized records management program to assist in categorfields. Leading software tools available were identified, izing and searching through the records. This process is and we engaged with several companies to evaluate the described in greater detail below. suitability of the available options, as well as the infrastructure and technical expertise that would be required to 2.8.1  Sources and Volume of Records use the selected software tools at their full capacity while 2.8.1.1  Provincial Government protecting the integrity and confidentiality of the data. During the preliminary stages of the referral process We determined that we would need software and hardin August 2015, government officials advised that they ware capable of processing and making available for our had compiled roughly 100,000 documents related to the review not only a massive volume of files and data, but a Ministry of Health investigation for the purpose of rebroad range of file types, including proprietary database sponding to requests under the Freedom of Information formats and forensic images, as well as large numbers of and Protection of Privacy Act. They also told us that there email records. To minimize the time necessary to review were approximately 100,000 more documents that had the records, reliable automated tools were required to been provided to Marcia McNeil during her review. They identify and eliminate duplicate files, screen out large further advised that approximately 60 file boxes of hard volumes of system and data files that were irrelevant to copy documents, as well as electronic media, related to our investigation, organize documents for analysis, and the Ministry of Health’s internal investigation were beprovide an interface that would allow us to efficiently ing stored securely and would be made available to us. search and review the records. Data processing software In these discussions, it became clear that an unknown and an electronic discovery platform for review and ananumber of additional documents would likely be relevant lytics were selected. to our investigation. CHAPTER 2 By the end of December 2015, the procurement and contracting process was complete. The initial set of files was loaded into the database and ready for use in February 2016. documents. Also in December 2015, we received a smaller subset of electronic records that included the material provided to Ms. McNeil for her review, and records compiled for the then-Deputy Minister of Corporate Initiatives in the Office of the Deputy Minister to the Premier for her While we were working on putting these electronic document review tools in place, we were also requesting and review. Together, these electronic records encompassed obtaining records from government. During the course of the entire contents of several network drives, local drives the investigation, records were requested and received on individuals’ computers, forensic images, databases in various formats, and numerous individual email accounts. from the following provincial government sources: The records included multiple versions of the same drive or Ministry of Health email account saved on different dates. These electronic Public Service Agency records totalled about five terabytes (TB) of data. Ministry of Finance Government Communications and Public Engagement Ministry of Justice BC Coroners Service Ministry of Education (records related to Research Relationships Tool Kit) Ministry of Technology, Innovation and Citizens’ Services Office of the Premier Office of the Minister of Health Office of the Minister of Finance The use of sophisticated technology assisted the investigation to identify the records for further examination in detail. Document management tools quickly separated volumes of irrelevant file types, and duplicate files. They enabled keyword searches, identifying near duplicates and organizing email threads. The same tools were applied to additional records collected throughout the investigation. This included email folders for 144 different individuals and 87 file boxes containing 129,000 pages of paper documents. In total, we collected over 6.4 TB of data. By the end of the investigation, the document management database contained just under 4.7 million separated files. 2.8.1.2  Duplicate Records Many of the nearly 4.7 million files in the database were In some cases, multiple requests for records were made duplicates, even though we put the database as a whole to the same government ministry or agency. These mul- through a de-duplication process. Those duplicates were tiple requests arose as an understanding of the issues retained because they contained unique metadata, were underlying the investigation developed. We received both attached to or otherwise linked with other files in the electronic and paper records during the investigation. database, such as emails, or were scanned from paper With the exception of our initial access to solicitor-client documents. privileged records, described in greater detail below, we 2.8.1.2.1  Different Sources did not encounter any significant difficulties in accessing government records. On occasion we had to clarify with A significant number of the duplicate documents in the government officials the Ombudsperson’s legislative au- database were emails. A primary reason for the large thority to obtain records, but once that was done we were volume of duplicate emails retained was the fact that the same email would come from different PSTs (files that provided with full access to relevant materials. contain all the contents of an Outlook email account have By far the largest set of records obtained was the elec- the file extension “.pst”). We received multiple copies tronic records set collected by the Ministry of Health’s of the same email from different individuals. One backinternal investigation team. These electronic records, and-forth exchange between two individuals, for example, received in mid-December 2015, contained millions of generates four separate documents – both the sender’s Office of the Deputy Minister to the Premier 11 12 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS and the receiver’s copies of the original message, and allowing one to see the multiple branches of a particular again both copies of the reply. If other people were copied email tree. Typically, these email threads would involve on the email, or it was forwarded to others later, those multiple individuals and dozens of responses over multiple versions of the email were also retained in the database. days or even weeks. We were able to filter these email Streamlining the document count by removing all dupli- threads to review particular “threads” of a conversation cates in the database would therefore have come at the or the email thread in its entirety. expense of retaining a complete picture of when, where By organizing the numerous duplicates of each message, and how an email was shared. conversations could be reviewed in their full context. Another source of duplication arose from the records Particularly important messages or sub-threads could be themselves. The Ministry of Health internal investigation, tagged and categorized by subject within the database, the Comptroller General’s investigation, and Ms. McNeil’s printed out and collated in their native format, or saved for review shared and drew upon much of the same source later review. Over time, we collected subsets of useful or material. The Legal Services Branch of the Ministry of relevant files. Using these approaches smaller groups of Justice also had copies of much of this same material for documents requiring more detailed review and analysis their own files. A single document might therefore exist could be isolated. This allowed us to methodically and in multiple places. We were able to use analytical tools efficiently identify the documents that were used during to determine the specific source of each document and in-person interviews. to therefore identify who had custody or possession of it. 2.8.1.4  Other Public Bodies The central task of this investigation was to understand Records were requested and received from the University what the various reviews and investigations knew; what of British Columbia and the University of Victoria. This evidence led to the actions taken against various indi- included correspondence with the Comptroller General viduals and institutions, and thus what documents had and the Ministry of Health, copies of contracts with the been collected, accessed and reviewed in support of those Ministry of Health, copies of policies, and financial inactions. Much of the same core material was encountered formation, including extracts from payroll and general multiple times, but this was in itself useful information, accounting ledgers provided by both universities to the as it assisted in determining what the various individuals government in 2013. involved knew or should have known. Records were requested and received from the Royal Can2.8.1.2.2  Different Formats adian Mounted Police. These records related to governAs noted above, the investigation obtained paper rec- ment’s decision to refer matters arising from its internal ords from the Ministry of Health internal investigation, investigations (the Ministry of Health investigation and the Comptroller General’s IU investigation, and lawyers the Comptroller General investigation) to the RCMP. in the Legal Services Branch that duplicated much of the 2.8.1.5  Individuals and the BCGEU electronic material we received separately. Again, both electronic and scanned versions of the paper documents In addition to government records, 130 individuals were were maintained so as to ensure as complete a picture as summonsed to attend interviews and produce any relevant possible of the records government used and accessed in documents in their possession or control. This resulted in additional records being obtained, including witnesses’ its investigations and decision making. emails, notes, documents related to court proceedings 2.8.1.3  Organizing and Searching Email Threads and meeting minutes. Some witnesses also made writThe value of the database and its filtering, threading and ten submissions on matters related to the investigation search capabilities quickly became apparent during review generally or to their individual circumstances. of the large volume of records. Records were also requested and received from the BC The database has an analytics function that removes much of the duplication, and groups and threads emails together, Government and Service Employees’ Union related to the CHAPTER 2 conduct of the grievances resulting from the Ministry of Health investigation. 2.8.2  Challenges in Obtaining Records arrangement would apply to that access. Unfortunately, however, this was not immediately the case at the beginning of the investigation. Early on, we attempted to obtain binders of information collected by the Investigation and Forensic Unit of the Comptroller General’s office. We were informed that we could not take the binders until they were vetted for solicitor-client privilege. When the Committee referred this investigation to the Ombudsperson in 2015, it expected that we would have “complete access to all required and relevant information, without limitation, in accordance with established We immediately raised with the Ministry of Justice a protocols.” concern about this response and our need to have full The investigation was planned in the expectation that we access to the records from the Legal Services Branch and would have complete access to all relevant government elsewhere in government. records, including privileged records. While the process of In December 2015, government agreed to a temporary obtaining these documents was not without its challenges arrangement until March 31, 2016, whereby information (as described below), it was valuable to our investigation subject to privilege was to be provided to us on the basis that government provided unfettered access to this maof a limited waiver of privilege. terial. This facilitated witness interviews and fostered a better understanding of government’s actions during the As government complied fully with this temporary arrangement, we were able to obtain the privileged material we relevant time frame. required. The temporary arrangement was not replaced The enactment and proclamation of the Ombudsperson after March 31, 2016. Instead, from that point until the Amendment Act, 2015 reassured witnesses, where applicend of the investigation we relied on the terms of the able, that their confidentiality obligations under other 1991 Memorandum of Understanding to obtain and use legislation did not prevent them from speaking with us. privileged information as contemplated by the Special Moreover, it allowed us to obtain records that we might Directions. The process for disclosing that information in not have otherwise been able to access. this report is described in section 2.11.1. 2.8.2.1  Privileged Records 2.8.2.1.2  Records Protected by Executive Privilege 2.8.2.1.1  Records Protected by Solicitor-Client On February 10, 2011, the Ombudsperson signed a protocol Privilege with the province that set out a process by which this The most significant challenge encountered early in the office would obtain documents or information related to investigation related to access to government records pro- the deliberations of Cabinet or any of its committees. The tected by solicitor-client privilege and litigation privilege. protocol also set out a process through which the OmbudsThe Special Directions set out the Committee’s expecta- person could make reference to Cabinet records in a public tion that government would: report issued under the Ombudsperson Act. The purpose of this protocol is to balance the Ombudsperson’s interest … apply the existing Memorandum of Understandin conducting thorough and complete investigations with ing between the Ombudsperson and the Governgovernment’s interest in preserving the confidentiality of ment of British Columbia related to legal advice, Cabinet discussions. to ensure that the Ombudsperson has access to all relevant legal advice provided to Government The Special Directions set out the Committee’s expectain relation to the subject matter of this referral. tion that government would apply this agreement to writThe existing Memorandum of Understanding referred to ten and electronic records but also to oral statements to in the Special Directions was established in 1991. Thus, which the 2011 protocol did not, on its face, apply. we expected that we would have full access to all rel- Because we anticipated a significant number of interviews evant government documents, including those protected in this investigation, and that some of those interviews by solicitor-client privilege, without delay, and the 1991 could involve disclosure of material protected by executive 13 14 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS privilege, in the early stages of planning this investigation the Ombudsperson signed a further protocol with government, relating to Cabinet information disclosed in interviews. This protocol, signed on October 15, 2015, confirmed that witnesses had government authorization to disclose executive-privileged information, and required us to notify witnesses of this authorization. The protocol confirmed that any such witness disclosure did not constitute a waiver of any privilege attaching to the information. With these protocols in place, we did not encounter any difficulties in obtaining Cabinet records or information as requested in the course of our investigation, whether that information was provided through an interview or otherwise. 2.9 Interviews Prior to interviews, we met with 17 individuals on an informal basis. The purpose of these informal meetings was to obtain either an orientation and initial understanding of those individuals’ involvement in the matters under investigation, or general background information. The informal meetings included meeting with three of the individuals named in the Special Directions and four other individuals whose work had been impacted by the Ministry of Health investigation. On January 25, 2016, we met with most of the individuals named in the Special Directions, as well as other affected individuals, to discuss our investigation process and to invite them to provide their perspectives. 2.8.2.2  Our Use of Backup Tapes Early in this investigation, we required the Deputy Minis- Once government issued its indemnity for witnesses in ters of each of the government ministries listed in the Spe- February 2016, the interview process was finalized. Forcial Directions to confirm in writing that they would take mal interviews began in March 2016 and continued to steps to require their staff to maintain, and not destroy, mid-December 2016. The Ombudsperson decided to issue a summons to all any records that could be relevant to the investigation. We made thorough and comprehensive requests for re- witnesses who were part of the formal interview process cords throughout our investigation. This was aided by and obtain their evidence under oath or affirmation, as the fact that government had – for reasons unrelated to permitted by section 15 of the Ombudsperson Act. The this investigation – maintained backup tapes containing Ombudsperson determined that this approach was neemail records for all of government that covered the time cessary due to the breadth and complexity of the invesperiod in question. This meant we were able to obtain tigation and the importance of ensuring that witnesses email records that might otherwise have been destroyed understood the serious consequences of failing to provide in accordance with normal records-destruction protocols. truthful information. Each summons also required each witness to furnish us with any records that they had in We found no evidence that material records relevant to their possession. Each interview was audio recorded. this investigation were deliberately destroyed. In fact, each witness was asked, under oath, whether they had We prepared a Witness Information Package that was destroyed relevant records or knew of any relevant records made publicly available on our website and that was prothat had been destroyed by others. Many witnesses gave vided to all witnesses in advance of their interview. All evidence that they deleted emails that they considered witnesses were given an opportunity to review relevant to be transitory records in accordance with government documents in advance of their interview so as to refresh records-management practices. Because government their memories and allow them to better provide evidence. maintained backup tapes of email records, as described Most witnesses took advantage of this opportunity. Where witnesses identified other documents that they above, we were able to recover some of these records. believed would assist them in answering questions, we However, the fact that this investigation concerned mat- made every effort to locate those documents and make ters that took place many years previous, meant that there them available for the interview. were inevitable gaps in the documentary records. For that As noted earlier, witness interviews were conducted prireason and others, we conducted extensive interviews. vately. We did not require witnesses to inform anyone that CHAPTER 2 they had been asked to attend an interview and it was made clear to each that they need not disclose that they had received a summons to their employer or any other person. Each witness was also asked to disclose whether they had been subject to any adverse treatment as a result of their participation, to ensure that there had been no breaches of section 16 of the Ombudsperson Act, which states that “a person must not discharge, suspend, expel, intimidate, coerce, evict, impose any pecuniary or other penalty on or otherwise discriminate against a person because that person complains, gives evidence or otherwise assists in the investigation, inquiry or reporting of a complaint or other proceeding under this Act.” lawyers from the Legal Services Branch members of the Executive Council, including Premier Christy Clark, Minister of Health Terry Lake and Minister of Finance Michael de Jong could not have completed our investigation without such cooperation. members of the Royal Canadian Mounted Police government contractors and associates or employees of government contractors external researchers university employees and faculty members The majority of interviews were conducted in Victoria and Vancouver. Four interviews were conducted by video connection because the witness was located outside Victoria and, based on the anticipated length of the interview, it was not necessary for the witness to travel to our office or for us to travel to the witness’ location. In such Collectively, 130 individuals were interviewed under oath circumstances, the Ombudsperson nonetheless issued a in 158 interviews; some conducted over multiple days. The summons requiring the witness’ appearance and required result was just over 537 hours of recorded interview time. them to swear an oath or make a solemn affirmation at As noted earlier, the Ombudsperson made the decision not the outset of the interview. to name every individual that was interviewed, because We would like to acknowledge and thank each of the 130 the privacy interest of every witness did not need to be individuals who participated in interviews as part of this affected in order to properly report on this matter. How- investigation. Witnesses approached what was, for some, ever, it is important to note that some of the witnesses a difficult and emotional process with professionalism, we interviewed under oath included current and former: candour and a willingness to assist our investigation. We Deputy Ministers and Assistant Deputy Ministers, including Deputy Ministers to the Premier staff in the Office of the Premier public servants from: the Ministry of Health, Ministry of Finance and Ministry of Technology, Innovation and Citizens’ Services the Public Service Agency the BC Coroners Service Government Communications and Public Engagement the Office of the Deputy Minister to the Premier 2.9.1  Unavailable or Unwilling Witnesses Throughout our investigation, we invited Ramsay Hamdi, David Scott and Linda Kayfish, through their common legal counsel, and Robert Hart to interviews. However, despite multiple invitations, none of these individuals wished to be interviewed as part of this investigation. The Ombudsperson was prepared, if it was essential, to compel any of these individuals to give evidence by issuing a summons notwithstanding their reluctance. However, in light of their experience with the Ministry of Health investigation, and the evidence we obtained from other sources, the Ombudsperson chose not to issue summonses to these individuals. For some of these individuals their legal counsel had indicated that any summons would be met with a court challenge, and thus the cost and delay arising from such litigation had to be weighed against the benefits to the investigation to be derived. Based on all of the other information that was available, the Ombudsperson is comfortable about the conclusions reached in 15 16 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS this report concerning these individuals, despite the fact that they did not participate. Government upheld its disclosure commitments, and thus our investigation reviewed extensive information that is protected by solicitor-client privilege, including letters, Some other people who were more peripherally affected by the investigation were reluctant to participate in an emails, memoranda, notes and other documents. Addiinterview. In each such case, before deciding to issue a tionally, as part of the interviews, witnesses regularly summons, consideration was given to whether that per- disclosed solicitor-client privileged information relating to son’s evidence was necessary to determining a material legal advice that they received or provided in connection with the subject matter of our investigation. It is importfact at issue in the investigation. ant to note that government maintains that it has not waived solicitor-client privilege over the information that 2.10  Considering the Evidence it provided in response to our requests and that we have Throughout this report, reference is made to information disclosed in this report. or evidence that we reviewed or received. In this investi- In accordance with the terms of the 1991 Memorandum gation, the evidence included oral testimony, provided to of Understanding, the Ombudsperson gave the Legal Serus under oath by witnesses, and documentary evidence, vices Branch of the Ministry of Justice an opportunity to which included the records received from the various review and make representations about the privileged information we planned to disclose. The Ombudsperson sources described above. Much of the evidence on key investigative issues was dir- took these representations into account in determining ect, in the form of witness testimony about something that what solicitor-client information to include in this report. happened with which the witness was directly involved. This report contains a substantial amount of information For example, direct evidence was received from multiple that is subject to solicitor-client privilege. In this regard, witnesses about who made the decision to dismiss each of the report provides a unique and perhaps unprecedented the Ministry of Health employees and about their personal window into the relationship between government and its lawyers, including how and when government seeks and involvement (or non-involvement) in those decisions. Circumstantial evidence was also considered. For example, receives legal advice, how that advice is communicated, when attempting to determine a date on which a particu- whether it is followed and how the advice it receives may lar event occurred, email records and witness evidence influence its conduct. allowed us to draw the appropriate inference on the issue. The Ombudsperson has determined that the disclosure of In assessing what happened with regard to the matters solicitor-client privileged information is necessary both to under investigation, the question was whether a particular fulfill the Committee’s directions that our report describe fact was “more probable than not,” giving consideration the nature and the extent of the involvement of the Ministry of Justice in the events around the 2012 terminations, to all of the investigative evidence relating to that fact. and to explain the actions of other government actors who sought or received legal advice during the events we 2.11  Disclosing Solicitor-Client investigated. These interactions point to the importance of having a government that seeks, receives and follows Privileged Information in This appropriate legal advice. As will be seen, there were a Report number of occasions in the events investigated where the public would have been better served if legal advice had The Special Directions were based in part on government been sought or followed or the scope of the advice that taking certain steps to facilitate this investigation. As was provided was better understood. noted above, one was to ensure that we had access to all of the relevant legal advice that government received There is and must be a special relationship of trust between lawyer and client. Solicitor-client privilege is vigorin relation to the subject matter of our investigation. ously protected in our system because it allows for a full CHAPTER 2 and candid exchange of information, which in turn enables counsel to represent and advise its clients effectively. In deciding how much solicitor-client information to disclose in this report, the Ombudsperson has been mindful of the need to avoid publishing extraneous, gratuitous or unnecessary privileged information. Only as much information as is necessary to provide context for the findings and recommendations made in this report is included. or recommendation under this Act that may adversely affect an authority or person, the Ombudsperson must, before deciding the matter, (a) inform the authority or person of the grounds, and (b) give the authority or person the opportunity to make representations, either orally or in writing at the discretion of the Ombudsperson. It is important to note that this report does not assess whether any particular lawyer’s advice was substantively The Ombudsperson Act does not define when an authority correct or whether the acts of those lawyers were ap- or person may be “adversely affected.” propriate. The Ombudsperson brought this issue to the In an investigation such as this one, that assessment is attention of the Committee in July 2015, noting that the not always straightforward. The Ombudsperson made that law prevents the Ombudsperson from investigating the assessment having regard to the purposes of section 17 decisions, recommendations, acts or omissions of an au- and the particulars of this investigation. Based on that assessment, the Ombudsperson did not issue a section 17 thority’s lawyer: report to a person or authority where, when viewed from 11 (1) This Act does not authorize the Ombudsan overall perspective, the report and recommendations person to investigate a decision, recommendation, about the person or authority were positive. The Ombudsact or omission person did, however, identify a number of authorities and (b) of a person acting as a solicitor for an persons who should receive a section 17 notice. authority or acting as counsel to an authority The requirement in section 17 to provide persons or auin relation to a proceeding. thorities with the “grounds” can be satisfied by providing As the Ombudsperson told the Committee: a letter setting out key points and potential adverse comI cite this provision to make it clear that the effect ments, and giving them an opportunity to make written or of this section is that the Ombudsperson is preoral representations. In this case, however, the Ombudscluded from investigating the conduct of lawyers person determined that it would be helpful to provide acting as solicitor or counsel for the government. persons and authorities with a confidential draft of the section of the report applicable to them for their response I hasten to add that this section does would not if they were prepared to sign an appropriate confidentiality prevent the Ombudsperson from obtaining the undertaking. legal advice that has been given to government officials. This may be essential in order to determine whether legal advice was obtained concerning a matter, and if obtained, whether it was considered and followed. In this regard, I note that my office does have a standing Memorandum of Understanding with the Ministry of Justice for this purpose generally. 2.12  Section 17 Process Section 17 of the Ombudsperson Act states as follows: If it appears to the Ombudsperson that there may be sufficient grounds for making a report Once an initial draft of the report was complete, we notified these authorities and individuals that they may be adversely affected. Because individuals receiving section 17 notices were entitled to apply for coverage under government’s legal fee indemnity, we also provided potentially adversely affected individuals with advance notice so that they could consider whether to apply for coverage and, if so, contact the Coverage Administrator to confirm their eligibility. The draft report excerpts provided to both individuals and authorities contained preliminary and tentative views. Most, but not all, individuals receiving a section 17 notice made representations as provided under the 17 18 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS Ombudsperson Act. The Ombudsperson carefully reviewed and considered each of the representations and took them into account in determining the content of this final report. 2.13  Identifying Individuals by Name in This Report One issue that arises when preparing a public report arising from a private investigation carried out under the Ombudsperson Act involves the identification of individuals. In the interest of transparency, we have in this report identified a number of individuals by name. Generally, members of the Executive Council, Deputy Ministers and Assistant Deputy Ministers are identified by name. This is because they are in positions of decision-making authority including their name is not an indication or suggestion of any issue with their conduct. We have decided in this report to limit references to the intimate emotional, health and other personal details of individuals except as necessary to establish material facts. This includes details disclosed to us by individuals named in the Special Directions and those who investigated various events. The Ombudsperson’s view is that it is not necessary to disclose that information in order to issue a proper report in this matter. 2.14  Issues Raised before the Committee 2.14.1  Legal Fees for Participants In addition to the issues addressed in the Special Directions, various other matters arose before the Committee. One issue that was raised in the fall of 2015 related to public funding for legal fees for individual participants We have not identified by name most individuals below (i.e. not public authorities) in our investigation. The Omthe level of Assistant Deputy Minister. We generally iden- budsperson made clear to the Committee that it was not tify such individuals by role. We appreciate that this may our office’s practice to pay the legal fees of individuals make the report more laborious to read and some may who are witnesses attending or otherwise involved in say it is less transparent for doing so. However, many of an Ombudsperson investigation. The Ombudsperson indithose individuals were acting in a support role and thus cated that departing from that regular practice was not there is no reason to name those individuals. There are supported because of the precedent that would set and some individuals below the rank of Assistant Deputy Min- the lack of statutory authority to do so. However, the Omister who had more significant roles. However, we see no budsperson agreed to raise the issue with government to principled basis on which to name such individuals. To do determine whether government would publicly fund legal so would exaggerate their involvement in comparison to fees of individuals involved in this investigation. the involvement of others. Most importantly it would be We made two points clear to government as it considered inconsistent with the remedial focus of an Ombudsperson whether to establish a legal fee indemnity. First, all perreport. We have identified by name the individuals named sons ought to be treated equally by any legal indemnity. in the Special Directions where necessary to properly dis- We advised government that eligibility should depend only charge the referral from the Committee. on the individual’s role in this investigation (i.e. all wit- In striking the above balance one thing is clear. An indi- nesses or all section 17 notice recipients) rather than on vidual’s purported involvement in this matter having been issues such as whether the person was a public servant. previously reported in the media is not determinative or Second, rules regarding the indemnity should not interfere even relevant to the question of whether they are identi- with our obligation to conduct the investigation in private fied by name in this report. It may be suggested that prior as required by section 9 of the Ombudsperson Act. publicity or notoriety should set aside the considerations In February 2016, government advised the Committee identified above. However, on a principled basis, such prior that it had established a legal fee indemnity system for publicity is irrelevant.16 16 Additional policy considerations related to public interest disclosure (also known as “whistleblowing”) preclude the disclosure of the identity of the person making the original complaint in this matter. These additional considerations outweigh the view that prior publicity about the individual justifies disclosure of that person’s identity. In Chapter 5 we provide further details about the role of the complainant. CHAPTER 2 this investigation. Government’s indemnity allowed witnesses and persons receiving notices under section 17 of the Ombudsperson Act to apply for coverage under the indemnity. The indemnity provided for the reimbursement of legal fees subject to limits related to hourly rates charged by lawyers and total amounts charged. The maximum payable under the indemnity for legal fees incurred by witnesses seeking advice about their participation in an interview was $1,000 and for legal fees incurred by a person in responding to a section 17 notice was $25,000. The details are that on the morning of December 5, 2012, I was at the Vancouver Cabinet office. John Dyble, Deputy Minister to the Premier, was also present. I was there to attend Cabinet as required on behalf of the Deputy Attorney General, who was at that time on vacation. Based on the records I have reviewed, it appears that Mr. Dyble orally asked me whether government had exercised due diligence on one of the employment terminations because there was a story about resulting litigation in the media that day. I contacted the Acting Assistant Deputy Attorney The Ombudsperson’s role under government’s indemnity General (Legal Services Branch) about the matter. Inforwas to designate the Coverage Administrator, and in this mation was also obtained about the view of the Head of regard, Howard Kushner, a Vancouver lawyer. Mr. Kushner the Public Service Agency, Lynda Tarras, although it is not previously held the position of Chief Legal Officer of the clear how those views were obtained. I then included the Law Society of British Columbia and from 1999 to 2006 issue in a written list of items for the Deputy Attorney was the Ombudsman of British Columbia. During this in- General upon his return from vacation on December 10, vestigation, witnesses and section 17 notice recipients 2012. The part of the list related to this issue is as follows: were advised of the indemnity and how to contact the ƒƒ Former MOH employee involved in pharmaCoverage Administrator for more information. Mr. Kushceutical firings has sued the province and ner administered the indemnity separately from both our held a press conference. office and government. In fact, we do not know which ƒƒJohn Dyble wants some assurance about the witnesses or section 17 notice recipients accessed the legal position of HMTQ. indemnity. ƒƒ Some difference in story: [the Acting Assistant Deputy Attorney General, Legal Services 2.14.2  Prior Role in 2012 Branch] is concerned firings occurred without Another issue raised at the Committee related to my prelegal advice whereas Lynda Tarras indicates vious role as a senior official at the Ministry of Justice this is not true and said that DM Health and prior to my appointment as Ombudsperson.17 In July 2015, [sic] called you and that there was advice I advised the Committee that my role in the Ministry of before firing and throughout. Justice did not include providing legal advice to line ministries. However, during the investigation we came across a document indicating that when was I acting in place of the Deputy Attorney General while he was on vacation, the matter had briefly come to my attention in that capacity. ƒƒThis will need to be investigated further (by [the Acting Assistant Deputy Attorney General, Legal Services Branch]) and a meeting with (or memo) to John Dyble held. Upon learning of this, I advised the Chair and Deputy Chair This memorandum, which updated the Deputy Attorney of the Committee, and advised the Committee of this de- General on his return from vacation, completed my involvevelopment at the next opportunity when appearing before ment in the matter. There is no indication in the records them. I advised the Committee, and confirm in this report, or otherwise of any other involvement. that I did not, in either July 2015 or when advising the On learning of this information in the fall of 2016, I sought Committee in November 2016, recall that involvement and advice from former Ombudsperson Stephen Owen and indicated that in the interest of transparency any details from two senior legal counsel. All were of the view that would be provided in this report. What follows is based the information that was discovered about my temporary on the documentary records obtained in our investigation. and extremely limited interaction with this file did not 17 In this section the Ombudsperson is referred to in the first person for purposes of clarity on the issue of his previous role. 19 20 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS affect my ability to complete the investigation as Ombudsperson, and I have proceeded in accordance with this advice. Directions related to provincial government involvement with research organizations including the British Columbia Centre for Excellence in HIV/AIDS (BC-CfE). Early in this investigation, we contacted the BC-CfE to seek its comment on whether, and to what extent, its The other issue about which the Committee expressed operations had been affected by the 2012 terminations. interest involved the expected duration of this investigaIn response, the BC-CfE advised that it had not been aftion. The July 29, 2015, motion passed by the Committee fected by the Ministry of Health investigation, contract referring the matter to our office expressed the hope that or employment terminations, or data access suspensions. the “investigation can conclude in a timely manner.” In a We did not find information to suggest that there was a public statement that day the Ombudsperson stated, “We link between matters related to the Ministry of Health understand the desire for answers in this matter and the investigation and terminations and the BC-CfE. As a result, wish that we complete this report in a timely manner. this report does not comment on the British Columbia However, speed is not our first goal – a thorough, high Centre for Excellence in HIV/AIDS. quality investigation is our primary objective.” 2.14.3  Anticipated Duration of Investigation The Ombudsperson advised the Committee in the fall of 2.15.2  Government’s Investigation into leak 2015 that a demanding schedule would put us in a position of IU report to report within about a year of commencing the investiga- The Investigation and Forensics Unit of the Comptroller tion. However, the Ombudsperson noted that there were General’s office completed a report into this matter in many things that could interfere with that estimate and June 2015, which is discussed in chapter 14 of this report. that completing a thorough investigation was the priority, Media reports published in March 2016 indicated that rather than working to an arbitrary deadline set at the an unauthorized disclosure of that report had occurred. outset with imperfect information. This report speaks to the impact of that disclosure on the The estimated one-year duration of this investigation was individuals involved. based on various assumptions, including document volume On March 15, 2016, our office was notified that governestimates provided by government shortly after the referment initiated an investigation into the unauthorized disral. That estimate was in the range of 200,000 documents. closure of the IU report. That investigation was carried As described in section 2.8, above, more than 4.6 million out by the Privacy, Compliance and Training Branch Invesfiles were obtained. This, and other issues, required more tigations Unit (PCT), within the Ministry of Finance. The time to complete the investigation. The Ombudsperson PCT advised us on March 10, 2017 that it had concluded updated the Committee on this discrepancy in the volume its investigation into the unauthorized disclosure and had of records in November 2016 and advised that as a result, prepared a report. this investigation would take roughly four to five months Under paragraph 5(a) of the Special Directions, the Omlonger than the original estimate. budsperson may limit the scope of his investigation where it would unnecessarily duplicate a process within the man2.15  Matters Not Addressed in date of another Officer of the Legislature. the Report 2.15.1  British Columbia Centre for Excellence in HIV/AIDS The Special Directions directed the Ombudsperson to consider the extent to which the employment or contract terminations of the individuals named in the Special The Ombudsperson has determined that, in the event that any review or follow-up is required into the PCT report, that any review or follow-up is within the mandate of and best addressed by the Information and Privacy Commissioner. The Ombudsperson has made no finding or recommendation as to whether that is or is not necessary. CHAPTER 2 2.15.3  The role of the RCMP 2.15.4  Other Officers of the Legislature The Special Directions provide that this investigation is to include government’s statements regarding the Royal Canadian Mounted Police (RCMP) in relation to the terminations. That issue is addressed in the report. To properly understand the involvement of the RCMP before and after government’s public statements, evidence was obtained from the RCMP including interviews under oath. However, the Ombudsperson wishes to be clear that this investigation did not encompass the conduct or decisions of the RCMP as that is outside the Ombudsperson’s jurisdiction by virtue of section 72 of the Police Act. Two officers of the legislature, namely the Auditor General and the Information and Privacy Commissioner, had some involvement in the matters encompassed in the Committee’s referral to the Ombudsperson. The Auditor General received the original anonymous complaint and brought this to the attention of officials at the Ministry of Health. The Information and Privacy Commissioner issued a report about three alleged privacy breaches reported to that office by the Ministry of Health as well as the information practices in the ministry more generally. Neither officer of the legislature is specified in the Special Directions as a public body about which the Ombudsperson was to describe involvement. Furthermore neither is a public authority within the meaning of the Ombudsperson Act. As a result the Ombudsperson did not investigate any act, omission, or recommendation of these Officers of the Legislature. To the extent that the matters we investigated overlapped with the matters reported to or by those officers we have made our own findings except where we state otherwise. 21 22 MISFIRE: THE 20l2 MINISTRY OF HEALTH EMPLUYMENT TERMINATIUNS AND RELATED MATTERS CHAPTER 3 3.0 / THE STANDARDS APPLICABLE TO GOVERNMENT CONDUCT 3.1 Introduction The previous chapter discussed in a general way the standards the Ombudsperson applies when assessing the actions of government. This chapter sets out in more detail the standards we applied, and why we applied them, in specific areas of the government conduct we reviewed. 23 24 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS 3.2  The Employment Context This report focuses primarily on the process and outcome of two government investigations into alleged employee misconduct: the investigation conducted in the Ministry of Health in 2012 and 2013, and the investigation conducted by the Investigations and Forensic Unit of the Office of the Comptroller General from 2012 to 2015. These investigations took place in an employment context where government made decisions to fire some employees, to discipline others, and to suspend and terminate government contracts and data access for external researchers.1 Canadian law has long recognized the importance of employment to a person’s sense of identity. The Supreme Court of Canada has emphasised the importance of work in peoples’ lives in numerous wrongful dismissal cases. In Reference re Public Service Employee Relations Act, the court wrote: Work is one of the most fundamental aspects in a person’s life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person’s employment is an essential component of his or her sense of identity, self-worth and emotional well-being … In exploring the personal meaning of employment, Professor David M. Beatty, in his article “Labour is Not a Commodity,” in Studies in Contract Law (1980), has described it as follows, at p. 324: As a vehicle which admits a person to the status of a contributing, productive, member of society, employment is seen as providing recognition of the individual’s being engaged in something worthwhile. It gives the individual a sense of significance. By realizing our capabilities and contributing in ways society determines to be useful, employment comes to represent the means by which most members of our community can lay claim to an equal right of respect and of concern from others. It is this institution through which most of us secure much of our self-respect and self-esteem.2 In this report we are not commenting on government’s ability to dismiss individuals without cause. Government, like any employer, has the ability to organize its workforce in the way it wishes, providing it follows the rules and processes set out in collective agreements, legislation and policy. 3 The Supreme Court of Canada in Dunsmuir was clear that the employer owes no duty of fairness when terminating an employee without cause where it otherwise satisfies the common law’s requirements of severance pay or pay in lieu of notice.4  However, in this case, when government decided to terminate individuals’ employment for cause it did so in a highly public way that has attracted significant scrutiny. When government made its public announcement about the terminations it also implicated the fired individuals in potential criminal conduct. Having done so, it was in our opinion incumbent on government to have reached its conclusions after an administratively fair and competent investigative process. There are three main reasons why, even if there is no legal duty to do so, it is important for government to adopt and implement administratively fair processes for investigations into allegations of employee misconduct. First, conducting a fair investigation is about treating public servants respectfully. As the Minister of Health acknowledged in 2014, when discussing Marcia McNeil’s review, “we want to make sure that members of the public service are treated with respect, are treated appropriately when there are human resource implications involved with 1 The Office of the Comptroller General investigation occurred primarily after the employment suspension and termination decisions, although the office was involved in “monitoring” the Ministry of Health investigation beginning in the summer of 2012. 2 Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313 at para 91. 3 In addition, provincial government ministries can only spend the amounts that are authorized by the Legislative Assembly in approving the budget. Therefore they need to be able to downsize or reallocate their workforce as required to meet their budgetary requirements. 4 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. CHAPTER 3 their work.”5 Typically this means giving employees a fair As the Supreme Court of Canada has described, the manopportunity to hear and respond to the allegations against ner in which employees are dismissed is of particular imthem. It also means listening to what those employees portance to those individuals: have to say, or providing employees with an opportunity … the manner in which employment can be terto have that say. It also means that government should minated is equally important to an individual’s not rush to judgement, but instead make its decisions identity as the work itself … By way of expanding only after careful consideration. When government speupon this statement, I note that the loss of one’s cifically promised the employees it suspended that they job is always a traumatic event. However, when would have the “opportunity to respond to the findings termination is accompanied by acts of bad faith of the investigation and any recommendation regarding in the manner of discharge, the results can be esyour employment,”6 a moral expectation of fair treatment pecially devastating. In my opinion, to ensure that was reinforced. employees receive adequate protection, employSecond, conducting a fair investigation ensures that ers ought to be held to an obligation of good faith and fair dealing in the manner of dismissal …9 more reliable conclusions are reached. Public servants conducting workplace investigations should be expected In the employment context, ensuring the fair conduct of to do so in a manner that ensures they obtain the neces- investigations into allegations of employee misconduct sary labour relations advice in order to reach reliable and will serve to insulate government against these risks. It accurate conclusions and recommendations. Incorporating also fosters greater confidence in the administration of principles of administrative fairness into the investiga- the public service and helps ensure government makes its tive process helps to ensure investigators avoid unjust decisions based on the evidence. outcomes that arise from a misapprehension of the facts or evidence. A fair process guards against the risk of in- In conducting our analysis, we considered the broader legal principles articulated by the courts in relation to vestigators developing tunnel vision. employment investigations that result in terminations for Third, conducting a fair investigation minimizes the legal just cause. For example, the Supreme Court of Canada and financial risk to government and, thereby, the taxpayer. has confirmed that in order to dismiss an employee for While fair investigation is not a legal requirement before just cause, the employer must prove that the employee’s firing an employee, and an unfair investigation does not misconduct justified termination because the misconduct vitiate a valid dismissal for just cause, it may make it more was incompatible with maintaining the employee’s ondifficult for an employer to later establish that it did in fact going employment. The courts have emphasised that the have cause to dismiss an employee. For example, an em- burden of proof rests with the employer to prove the alployer who does not provide an employee with a reason- leged misconduct on a balance of probabilities. This means able opportunity to respond to allegations of wrongdoing the employee does not have to prove that they did not may be unable to meet the burden of establishing cause.7 engage in misconduct. The courts have also confirmed Further, an inadequate and unfair investigation that does that the employee’s alleged misconduct must be assessed not properly assess the validity of allegations against an contextually. This means the court will not consider the employee exposes the employer to potential claims for employee’s conduct in isolation, but will instead consider increased damages for breaching its implied obligation of good faith and fair dealing in the manner of termination.8 5 Minister Terry Lake, British Columbia Legislative Assembly, Hansard, 7 October 2014, 4541 . 6 As set out in the suspension letters sent to each of the excluded employees. This opportunity was not afforded to those employees. 7 van Woerkens v. Marriott Hotels of Canada Ltd., 2009 BCSC 73 at para 150, 71 C.C.E.L. (3d) 87. 8 van Woerkens v. Marriott Hotels of Canada Ltd., 2009 BCSC 73, at para 152, 71 C.C.E.L. (3d) 87. 9 Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 742 at para 95 25 26 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS the surrounding facts and circumstances before determining whether termination for just cause was warranted.10 Having described why the workplace investigations required administrative fairness, it is appropriate to turn next to the standard against which employee conduct should have been evaluated by the investigators and decision-makers. In the B.C. public service, this standard is set out in the Standards of Conduct for public service employees. We describe two important ways in which investigators and decision-makers should consider whether employee conduct has been condoned and, therefore, not subject to discipline. This law makes clear that it is important that investigators, advisors and decision-makers consider all additional mitigating factors that relate to the employee’s individual employment circumstances. In other words, a comprehensive investigation into allegations of employee misconduct should include the employer’s broader assessment of factors such as the employee’s length of service, their disciplinary history, the seriousness of the alleged misconduct, the employer’s awareness of the organizational 3.2.1  Standards of Conduct for Public culture, the presence or absence of clearly defined poliService Employees cies, processes or similar circumstances that influenced the employee’s actions. The employer should also con- The Public Service Agency (PSA) has established Stansider whether the proposed discipline or termination is dards of Conduct for public service employees. The rationconsistent with the employer’s prior responses to similar ale for these standards is to help ensure that all public 11 incidents, or takes into account organizational problems servants “exhibit the highest standards of conduct.” or policy and process gaps that it was aware of but had Employees are expected to comply with the Standards of Conduct as a condition of their employment, and to not addressed. check with their supervisor if they are uncertain about When a public authority is investigating allegations how the standards apply in a particular circumstance. The against employees, therefore, we expect that authority Standards of Conduct cover issues such as an employto have: ee’s duty of loyalty, confidentiality, impartiality, workplace a transparent and consistently applied standard behaviour, conflicts of interest, reporting allegations of against which to weigh the evidence gathered wrongdoing, working relationships, and outside remunerative or volunteer work.12 a clearly developed understanding of their onus to demonstrate, on a balance of probabilities, whether or not there was misconduct by the individuals it was investigating a clearly developed understanding of the context in which the alleged misconduct occurred, including the employee’s actual role and duties in the organization and the relevant practices and culture in the workplace The head of the PSA is responsible for providing advice about the application of the Standards of Conduct, guidance on how to appropriately respond to violations of the standards, and promoting awareness of the standards.13 Deputy Ministers, in turn, are responsible for advising employees of the required standards, dealing with breaches “in a timely manner, taking the appropriate action based upon the facts and circumstances,” waiving the provisions on working relationships in specified circumstances, and 10 McKinley v. BC Tel, 2001 SCC 38, [2001] 2 S.C.R. 161. 11 Public Service Agency, Standards of Conduct for Public Service Employees . 12 Public Service Agency, Standards of Conduct for Public Service Employees . 13 Public Service Agency, Standards of Conduct for Public Service Employees . CHAPTER 3 delegating authority and responsibility to apply the standards within their organization.14 ƒƒ the employee’s actions or conduct could undermine or compromise: In each of the investigations conducted by the Ministry of ƒƒ the public’s confidence in the employee’s Health and the Office of the Comptroller General the inability to discharge work responsibilities; or vestigation teams made specific findings of fact that some ƒƒ the trust that the public places in the BC of the employees breached the Standards of Conduct. In Public Service.16 particular, each investigation concluded that several employees had impermissible conflicts of interest. Because The Standards of Conduct make employees responsible the Standards of Conduct outline the test for determining for arranging their affairs in a way such that conflicts of whether conflicts of interest exist for public servants, it is interest do not arise. Employees who find themselves in this standard that should have been applied throughout an actual, perceived or potential conflict of interest are reconflict to their manager, supervisor those investigations. In the following section, we describe quired to disclose that 17 or ethics advisor. There is no set procedure outlining how, in our view, conflicts of interest should be assessed.15 what happens once a conflict of interest is disclosed by 3.2.1.1  Conflicts of Interest the employee to his or her manager. According to the Generally, in the employment context, conflicts of interest PSA, it is up to each manager to decide how to document, may arise in circumstances where an employee’s private manage and conduct a conflict of interest discussion. interests conflict with, impair, or are incompatible with Based on the Standards of Conduct, we would expect an the performance of their employment duties. Ensuring analysis of a conflict of interest to first assess the nature that employees carry out their work in accordance with of the employee’s duties in question. Second, we would the public interest, without regard for their own private expect the analysis to consider what “private affairs or interests, is central to the notion of a fair and impartial financial interests” are in actual or perceived conflict with public service. those duties such that the employee’s ability to act in the The Standards of Conduct provide the following definition of “conflict of interest”: A conflict of interest occurs when an employee’s private affairs or financial interests are in conflict, or could result in a perception of conflict, with the employee’s duties or responsibilities in such a way that: ƒƒ the employee’s ability to act in the public interest could be impaired; or public interest could be impaired or the employee’s actions or conduct could undermine or compromise the public’s confidence in the employee’s ability to do his or her job, or the public’s trust in the public service. Given the size of the public service and the wide range of activities in which government engages, it is not surprising that public servants may find themselves in an actual or perceived conflict of interest position from time to time. While the Standards of Conduct make it clear that public servants are required to take steps to remove these conflicts, the standards make it equally clear that 14 Public Service Agency, Standards of Conduct for Public Service Employees, “Responsibilities – Deputy Ministers” . 15 We discuss the adequacy of the existing standard as a tool for evaluating employee conduct in the Findings and Recommendations chapter (Chapter 18) of this report. 16 Public Service Agency, Standards of Conduct for Public Service Employees, “Conflicts of Interest” . 17 The Standards of Conduct include examples of conduct that could constitute a conflict of interest, including using government property or affiliation to pursue personal interests, giving preferential treatment to an entity in which the employee has an interest, benefiting from the use of information obtained solely by reason of one’s employment, benefiting from a government transaction over which the employee can influence decisions, and accepting a benefit for the performance of duties beyond the nominal exchange of gifts. See Public Service Agency, Standards of Conduct for Public Service Employees, “Conflicts of Interest” . 27 28 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS any assessment of a potential conflict of interest situation requires a proper contextual assessment of the real or perceived impact on the person’s public service role. As written, the Standards of Conduct lack clarity about whether a potential conflict of interest concern will be allowed to persist once it has been disclosed. We note that some conflicts of interest will be so serious and direct that the conflict must be eliminated if the individual is to remain in the public service. In other situations the Standards of Conduct recognize that sometimes an actual or potential conflict can be mitigated following disclosure. It is readily apparent that any finding of conflict requires careful analysis. Second, individual employees should not be disciplined for matters that are formally within the scope of their job duties and are therefore part of how they are expected to carry out their employment. For example, if an employer expressly and knowingly placed its employee in a dual role, that employee cannot then be disciplined for occupying that role. It is generally appropriate for the employer to question or change the policy decisions that led to a particular structure or business process, and then to change that structure or process, but it is not appropriate to single an employee out for discipline who was expressly placed by his or her employer in that structure or process. Throughout our report, therefore, we assess whether the investigators appropriately considered the issue of con3.2.1.2 Condonation Another common theme throughout our investigation is donation in investigating allegations against public service the question of whether the employee conduct under in- employees. vestigation was known of, approved, and therefore con- 3.2.2  Content of an Adequate and Fair doned by the employer. As a matter of law and principle, Investigation if an employee engages in misconduct sufficient to justify termination for cause, but the employer overlooks or ap- As described above, applying principles of administrative proves the employee’s conduct, the employer cannot later fairness to the investigative process can help investigators rely on that conduct to dismiss the employee. Similarly, demonstrate that they have reached findings of fact that if an employee acts in a way that was consistent with are reliable and supported by the evidence. The principles the directions of the employer, but the employer later of administrative fairness inform the basis of the standard changed its mind about the appropriateness of its own of review we apply when investigating and drawing conprior directions, the employer cannot “move the goal posts” clusions about government conduct. to characterize what the employee did before he or she While not intended to be exhaustive, a reasonable and received the new directions as misconduct. The question administratively fair investigative approach used by the of condonation can arise in different contexts; two are public service should include the following: particularly relevant to our investigation. there is a clear understanding of the nature and First, individual employees should not be singled out for discipline where their conduct is part of a generally accepted and widespread practice throughout the workplace. This is particularly true where there is an absence of clear policy direction guiding the conduct of the employee. Similarly, individual employees should not be disciplined for actions where the employer knew of their conduct but did not object and may, in fact, have encouraged it. This does not mean that because a particular practice was generally accepted in the past, it cannot be changed. It does mean, however, that if the employer is going to change the practice for the future, it has to give fair warning by providing appropriate clarity in the workplace. extent of the investigative body’s authority the purpose, scope and time frame of the investigation is established in writing the investigators familiarize themselves with the subject matter of the investigation objective, documented standards are used to measure the conduct or issue being investigated the burden of proof that must be met to reach conclusions is clearly articulated the investigators understand and have been trained in how to gather, review and assess evidence, weigh CHAPTER 3 conflicting evidence and determine whether they have met the applicable burden of proof ensuring the advisory function is kept separate from the investigative function the investigators consider both inculpatory and exculpatory evidence in making determinations of fact, and base factual findings on a reasonable assessment of all the evidence ensuring that advice on the ultimate disciplinary decision should not be provided until after all of the relevant evidence has been gathered and assessed the investigators understand and apply the principles of administrative fairness throughout the interview process, including: conducting the investigation with an open mind and drawing conclusions based on the evidence providing individuals affected with an appropriate opportunity to be heard before any conclusions are made providing individuals with notice of the allegations against them in advance of any interview providing individuals with disclosure and particulars about the allegations against them in advance of any interview, except in the rare case where there are clear and compelling reasons not to do so ensuring the human resources advice is based on an objective and thorough examination of the evidence and all of the circumstances of the case, including the applicable mitigating factors ensuring that, where a termination for cause is put forward as an option, senior labour relations advice or legal advice regarding the existence of just cause has been provided recognition that human resources advice must be based on a complete understanding of the applicable terms and conditions of employment, collective agreement language, legislation and jurisprudence human resources advice should be provided by a qualified professional with a level of experience and training commensurate with the nature and complexity of the investigation Careful implementation of the investigative and advisory functions in accordance with these principles is important to ensure that the ultimate decision-makers will have confidence both that the recommendations they receive are based on a sound assessment of the facts under investigation and that they can rely on the advice they receive. Maintaining a clear division of the roles be treating all witnesses with respect tween the investigative, advisory and decision-making Moreover, each investigation should be informed by cur- functions protects the integrity of the employer’s ultimate rent best practices and the relevant legal principles that decision in response to allegations of employee misconare appropriate to the facts of the specific investigation duct. Consistent with the other two components of an being conducted. administratively sound investigation, the steps taken by the decision-makers should also be guided by a clear set Within public service human resources investigations context, it is equally important to ensure that the division of principles, which include: of roles remains clear between public service investiga- disciplinary decisions should only be made after tors, labour relations advisors, and the ultimate statutory receiving appropriate labour relations and/or legal decision-makers. While the principles described above advice apply to the investigative function, a similar yet distinct the decision-maker must critically examine the set of principles apply to the provision of human resources information in support of the decision, including the advice to ensure that human resources advisors fulfill their investigation report findings and the labour relations role in an administratively sound way. These principles and/or legal advice received include: conducting the interviews using a fact-finding approach, including using open-ended questions as much as possible, providing individuals with appropriate time to review any documentary evidence they will be asked about, and listening to what they have to say 29 30 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS any disciplinary decision should take into account the applicable jurisprudence and be based on all of the circumstances of the case are carried out effectively. The PSA has established a formal “accountability framework” for Deputy Ministers that makes those leaders accountable for, among other things: the briefing materials supporting the disciplinary decision must be properly documented ensuring that human resource management responsibilities that directly flow to them through legislation or labour contracts are discharged If the decision-maker disagrees with the advice provided, the decision should not be made until the dispute is ensuring that human resource management identified and an opportunity for resolution is afforded responsibilities are carried out in a manner con(including escalation where applicable) and the decision sistent with applicable legislation, collective agreeto not follow the advice is documented. Since allegations ments, terms and conditions of employment, and of employee misconduct include a wide variety of conduct, the Corporate Human Resource Management Policy it is not enough for investigators, labour relations advisors Framework19 and the ultimate decision-makers to be merely aware of While Deputy Ministers may assign certain human rethese principles. They must be applied in practice. More- source responsibilities to staff, and may receive advice over they must be applied within a rigorous structure and from that staff, they still maintain overall accountability with sufficient consistency to ensure that they can serve for decision making within their organization.20 As noted as the core of an effective and fair investigatory, advisory above, Deputy Ministers are also responsible for ensuring and decision-making process. that their organizations respond appropriately and in a These principles are the basis upon which we assessed government conduct throughout this report. 3.2.3  Executive Accountability 3.2.3.1  Human Resource Matters Executives in any organization are responsible for the management of human resource matters. Under the Public Service Act, only Deputy Ministers, the head of the Public Service Agency or an individual delegated authority under the Act can make a decision to dismiss an employee for just cause.18 Disciplinary decisions short of termination can be made by executives or supervisors in accordance with their delegated authorities. Deputy Ministers have a particular responsibility to ensure that human resource decisions and practices within their ministries timely way to allegations of violations of the Standards of Conduct. In their roles, they may receive complaints alleging wrongdoing, and they have a duty to respond in accordance with the provisions of the Standards of Conduct and any applicable collective agreement.21 More generally, Deputy Ministers are responsible for supporting and upholding government’s core human resource policy objective of “promoting a safe and healthy workplace that supports the well-being of employees.”22 Part of this involves fostering a work environment that treats all employees with respect and dignity, by ensuring that all members of their organization carry out their work in a way that is consistent with these goals. Employee terminations, ongoing workplace investigations and widespread suspensions can be devastating to employees’ sense of 18 Public Service Act, R.S.B.C. 1996, c. 385, s. 22(1). 19 Government of British Columbia, Accountability Framework for Human Resource Management, “Accountability of Deputy Ministers and Senior Officials” . 20 Government of British Columbia, Accountability Framework for Human Resource Management, “Delegation to Staff and Accountability” . 21 See Public Service Agency, Standards of Conduct for Public Service Employees, “Allegations of Wrongdoing” . 22 Government of British Columbia, “Core Policy Objectives & Human Resources Policies” . CHAPTER 3 a respectful and productive workplace. It is the job of 3.2.3.2  Other Decision Making Deputy Ministers and senior executives to recognize the As we have described above, the Ministry of Health invesbroader impacts of their decisions and find early and ef- tigation resulted not only in suspensions, terminations and fective ways to address these impacts when they arise. disciplinary decisions but also in data access suspensions Moreover, as the leader of an organization, the Deputy for external researchers, and the suspension and terminMinister has a clear responsibility to ensure that those ation of contracts between the Ministry of Health and contractors including the University of British Columbia acting at his or her direction: 23 and the University of Victoria. As we will outline in this understand the scope of their role and duties report, these decisions were made by senior executives are carrying out their duties in a fair, respectful and in the Ministry of Health at the recommendation of the objective manner, in accordance with the principles Ministry of Health investigation team. outlined above Although such decisions are discretionary, and there is can demonstrate that they have properly docunormally no legal duty to follow any particular process mented the rationale for the directions they give to unless it is set out in the contract, sound administration staff and the decisions they make in my view supports the expectation that a decision-maker Where investigations within their ministries take place, follows an administratively fair and appropriate process executives can assist in this process by ensuring that in coming to a decision. At a minimum, this means that: investigative terms of reference explicitly refer to the if the decision relates to a contractual relationship, it applicable principles of administrative fairness, setting is consistent with what is permitted under the terms clear expectations about how those principles are applied of that contract and by providing appropriate oversight throughout the in the decision-maker receives and reviews the relvestigative process. evant information before making a decision In this way, the Deputy Minister can be seen as the the decision-maker informs himself or herself as “guardian of the administrative order,” demonstrating the to the potential impact of the decision on ministry “ability to do the work of the government expertly and to objectives, including by consulting with external do it according to explicit, objective standards rather than stakeholders or internal subject matter experts as to personal or party or other obligations and loyalties.”24 required The above principles are also applicable to other senior the decision and rationale are clearly documented leaders within an organization, such as Assistant Deputy Ministers, who may have similar responsibilities for any parties affected by the decision receive notice and reasons sufficient to understand the basis for managing and making decisions about human resource the decision matters. Although they may rely on advice from staff, they have a responsibility to ensure that the staff doing the A decision-maker who does not follow the above steps work understand their role, carry out their duties fairly, and runs the risk of arbitrary and unreasonable decision provide a clear rationale and, where applicable, supporting making. documentation for the advice they provide. 23 This is consistent with government’s Core Policy Objective that “public service employees understand their roles [and] how their work contributes to achieving the goals of government.” See Government of British Columbia, “Core Policy Objectives & Human Resources Policies” . 24 Jacques Bourgault and Christopher Dunn, “Conclusion,” in Deputy Ministers in Canada: Comparative and Jurisdictional Perspectives, ed. Jacques Bourgault and Christopher Dunn (Toronto: University of Toronto Press, 2014), 431. 31 32 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS 3.3  Systemic Factors and Individual Responsibility of multiple contributing factors. Blaming an individual does not change these factors and the same error is likely to recur. Preventing errors and improving safety for patients require a systems approach in order to modify the conditions that contribute to errors.25 Throughout this report we highlight factors that we believe contributed to flawed reviews and investigations that, in turn, led to wrong and unjust decisions with far-reaching consequences. Our analysis identifies and describes the At the same time, it would be unfair to distribute responsactions of specific individuals, as this is necessary to iso- ibility for the failures so broadly as to render any analysis late the key events and tell the story of what happened. meaningless. The decisions to conduct the investigations and to suspend and terminate contracts, employment and When viewed as a whole, we do not believe that any data access were made by individuals whose powers to do individual process, action, person or organization was the so were enshrined in their public service positions. These cause of the gaps and failures we observed. The events individuals did not make their decisions in isolation and described in this report arose from a sequence of events frequently relied on the advice and guidance of others. that undermined the regular human resource processes Nevertheless, decision-makers also had the responsibthat normally would have applied. By themselves, none of ility to ensure that their choices were supported by an the investigators, the senior management, nor any other objective, impartial, evidence-based analysis. Throughout person or organization individually caused the multiple the course of our review we saw occasions where deevents described in this report. To focus exclusively on any cision-makers failed to adequately question the factual one individual event would have caused us to overlook the basis of the analysis and recommendations they received. numerous factors that led to the employment, data and Too frequently they also did not take steps to test or even contract suspensions and terminations. Such a narrow ask to see supporting evidence. On some occasions, asperspective would have excluded opportunities to prevent sumptions were made about what had been determined similar failures from occurring in the future. in the course of the investigation. At other times, deIn our analysis, we drew inspiration from a report issued cision-makers did not adequately heed the cautions of by the Institute of Medicine in the United States, which those providing advice. In our view it was important to discusses the importance of focusing on issues from a understand how and why the decision-makers failed to systemic perspective as a way of preventing future errors take such steps. and improving critical outcomes: Although we have identified a number of issues with how Building safety into processes of care is a more efindividuals carried out their responsibilities in investigatfective way to reduce errors than blaming individing this matter, we are not recommending employment uals … The focus must shift from blaming individdiscipline for them. No doubt there are some people who uals for past errors to a focus on preventing future would view such discipline as the appropriate step. We errors by designing safety into the system. This do not take this view. With the release of this report, does not mean that individuals can be careless. we believe the time for assigning blame through further People must still be vigilant and held responsible individual discipline has passed. It is important for the for their actions. But when an error occurs, blamMinistry of Health and the broader public service to begin ing an individual does little to make the system the difficult work of reconciliation, not inflict more pain safer and prevent someone else from committing or engage in scapegoating. For nearly five years no one the same error … even apparently single events has had a clear understanding of what happened and why. or errors are due most often to the convergence Reconciliation cannot happen without a common basis of 25 Linda T. Kohn, Janet M. Corrigan, and Molla S. Donaldson, ed., “Executive Summary,” in To Err Is Human: Building a Safer Health System (Washington, DC: National Academy Press, 2000), 5 and 49. CHAPTER 3 understanding on which to move forward. By describing what happened and in making the recommendations in this report, we hope to provide a basis for government, public servants and the affected individuals to focus on reconciliation. We believe that a commitment to reconciliation would be the most important outcome of our investigative work. Due to the secrecy that has surrounded this matter, there is still much work to do to repair the damage done by the events that began five years ago. This report seeks to bring this secrecy to an end by shining a light that illustrates what happened and illuminates a path upon which to move forward. 33 34 MISFIRE: THE 20l2 MINISTRY OF HEALTH EMPLUYMENT TERMINATIUNS AND RELATED MATTERS CHAPTER 4 4.0 / UNDERSTANDING THE MINISTRY OF HEALTH IN 2012: BACKGROUND AND CONTEXT 4.1 Introduction The purpose of this chapter is to provide the necessary background and context for the rest of the report. This chapter contains three distinct parts. The investigation conducted by the Ministry of Health in 2012 focused initially on the Pharmaceutical Services Division (PSD) of the Ministry of Health. In the first part of this chapter, we therefore describe the development of PSD in terms of both the ministry’s role in administering a publicly funded pharmaceutical insurance program and the increasing recognition, over the last 20 years, of the value of evidence-based policy making in this area. We describe the way in which, beginning in 2006, PSD was structured to emphasize evidence-based policies on pharmaceuticals. We describe how access to administrative health data is a key part of this work. We also discuss the range of PSD’s evidence-based research programs including the relationship between the Therapeutics Initiative and the Ministry of Health; and public health epidemiological work which, although not part of PSD, also used administrative health data to support and inform ministry decision making. Second, we identify some important elements of the organizational culture at the Ministry of Health in 2012 that, in our view, contributed to the way in which the investigation unfolded. We describe the Danderfer case, which caused some public servants to be suspicious of contracting practices in the Ministry of Health generally. We discuss the tensions within the Ministry of Health regarding administrative health data in the years leading up to the 2012 investigation, and describe a review beginning in 2011 that attempted to identify and address some of the problems caused by this long standing problem. We also describe some changes in key personnel at the executive level in the Ministry of Health in 2011 and 2012. Third, we provide a brief overview of five other government bodies in addition to the Ministry of Health that were involved in the 2012 investigation or subsequent events. 35 36 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS View main timeline 1994 1995 Therapeutics Initiative established. Reference Drug Program introduced. Nov 3, 2011 Timely Access to Health Data review begins. 1998 May 2004 Feb 2006 Mar 21, 2006 Office of the Auditor General releases Managing the Cost of Drug Therapies and Fostering Appropriate Drug Use report. Ministry of Health enters new funding agreement with Therapeutics Initiative. Bob Nakagawa begins position as Assistant Deputy Minister of Pharmaceutical Services Division. Office of the Auditor General releases Managing Pharmacare report. Oct 2009 Mr. Nakagawa updates Auditor General on progress implementing the recommendations from the 2006 Managing Pharmacare report. 4.2  The Ministry of Health and Pharmaceutical Policy: Historical Perspective Jul 2009 Apr 2008 Jun 2006 Ministry of Finance releases report on procurement and contract management practices in the Ministry of Health. Pharmaceutical Task Force Report released. National Pharmaceuticals Strategy Progress Report co-chaired by Minister of Health George Abbott. to self-governing health professions such as doctors, pharmacists, nurses and allied health professionals. 4.2.1  Role of PharmaCare While responsibility for reviewing and approving drugs for sale in Canada rests with the federal government, deciThe Ministry of Health is responsible for ensuring the sions about whether to publicly fund the costs of particular “quality, appropriate, cost effective and timely” delivery drugs are largely made by the provincial governments. In of health services to British Columbians.1 It administers 2015, public drug program spending across 10 jurisdictions provincial legislation related to health care and directly (all provinces except Quebec, and the First Nations and manages provincial health care programs and services. Inuit Health Branch of Health Canada) was almost $8.8 bilThese include the Medical Services Plan, PharmaCare and lion.3 In British Columbia, the provincial government’s role the British Columbia Vital Statistics Agency. The ministry as a large-scale public insurer of pharmaceuticals began oversees the five regional health authorities and the Provin 1974.4 Under current policy, the province covers eligible incial Health Services Authority, which are responsible prescription drugs for British Columbians through several for the direct delivery of health services.2 The Minister of drug plans administered under the umbrella of PharmaCHealth also has responsibility for the legislation pertaining are. These include Fair PharmaCare, which reimburses prescription drug costs based on a person’s individual or 1 Ministry of Health, 2016/17–2018/19 Service Plan, February 2016, 5 . 2 Ministry of Health, 2016/17–2018/19 Service Plan, February 2016, 5 . 3 Canadian Institute for Health Information, Prescribed Drug Spending in Canada, 2016: A Focus on Public Drug Programs (Ottawa: Canadian Institute for Health Information, 2016), 6 . 4 Ministry of Health, Medical Beneficiary and Pharmaceutical Services Division, PharmaCare Trends 2014/15, “PharmaCare History,” 6 . CHAPTER 4 family income, and plans that reimburse prescription drug costs for specific groups of British Columbians.5 compared with less expensive alternatives is unlikely to be covered. Conversely, a drug that has a high cost but is the only drug on the market with therapeutic benefit PharmaCare only reimburses the costs of those drugs that are listed on the provincial formulary. Publicly fund- for a serious condition or disease may be more likely to ed coverage for other drugs not included in the formulary be covered. may be obtained through a person’s medical practition- Before a new drug can be listed on PharmaCare’s forer by requesting a special authority approval. For these mulary, it must go through several steps. 9 If a drug is case-specific requests, the Ministry of Health assesses not listed on the formulary, that does not mean it is not whether covering the drug is appropriate.6 available to the public. Rather, it means that, subject to The proliferation of new pharmaceuticals in recent dec- special approval in a particular case, the cost of that drug ades has required government to constantly consider will not be publicly funded. whether, and to what extent, public funds should be expended on a particular drug – whether by listing on the formulary or through the special authority process. As the number of new drugs has increased and as their costs have escalated, individual patients, patient advocacy groups and industry have exerted considerable pressure on the Ministry of Health to approve coverage for new drugs as they come to market. 4.2.2  Evaluating Pharmaceutical Use, Safety and Effectiveness As described in a 2006 National Pharmaceuticals Strategy Progress Report, “drugs are a vital part of the Canadian health system. Appropriate use of safe and effective drugs can prevent, treat and cure diseases, improve quality of life and lengthen and save lives.”7 However, as with the rest of government, the amount of money that the Ministry of Health can spend on prescription coverage is limited by both the overall size of its budget and how that budget is allocated to all the services it provides. Since not all drug therapies can be funded, one key consideration in funding is a drug’s cost-effectiveness. This is determined by comparing the extent to which a drug contributes to health with its monetary cost.8 For example, a drug that has a high cost but very little discernible benefit when How often is a drug prescribed, and for what purpose? It is known, for example, that some drugs are prescribed “off label” – that is, not for their approved purpose. Once a drug is listed in the formulary, the provincial government does not commit to assessing its ongoing effectiveness. Yet ongoing questions around pharmaceutical use, safety and effectiveness often arise, particularly with new classes of drugs. These questions include: In what ways are patient health outcomes assessed when a drug is prescribed to vulnerable populations, including children, seniors and pregnant women? In what ways are patients’ health affected by adverse side effects of specific drug treatments? How do different drugs interact when prescribed in combination with other drugs? To what extent do health outcomes improve or deteriorate from drug treatments over the long term? 5 These include permanent residents of residential care facilities, recipients of income assistance, children in the At Home program, and recipients of palliative care. This list is not exhaustive. Source: Ministry of Health, “PharmaCare for B.C. Residents: Who We Cover” . 6 This is done through the Special Authority Process. See Ministry of Health, “PharmaCare for B.C. Residents: What We Cover” . 7 Federal/Provincial/Territorial Ministerial Task Force on the National Pharmaceuticals Strategy. National Pharmaceuticals Strategy Progress Report (Ottawa: Health Canada, June 2006), 18 . 8 Jennifer D. Cape et al., “Introduction to Cost-Effectiveness Analysis for Clinicians,” University of Toronto Medical Journal, Vol. 90, No. 3, March 2013 . 9 This basic process has been in place since 2008. See Ministry of Health, The Drug Review Process in B.C. – Detailed . 37 38 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS Such questions have led to increasing calls for govern- outcomes” and a tendency for decisions to be made about ments to take an active role in supporting efforts to assess buying new health technology “without knowing the imthe impacts of drug therapy over the longer term from pact of that technology on addressing population health a “real-world” perspective. These calls are not new. For needs.”14 example, the 1991 Royal Commission on Health Care and The 2006 National Pharmaceuticals Strategy Progress ReCosts recommended that the drug approval process be port of the Federal/Provincial/Territorial Ministerial Task extended to include “post-market surveillance” in order Force made a series of recommendations for a strategy to evaluate the effects of drugs on populations not typ- aimed at addressing “the challenges and opportunities ically included in pre-approval trials, including children, across the drug lifecycle using an integrated, collaborative, the elderly, pregnant women and people with multiple multi-pronged approach to pharmaceuticals within the illnesses.10 health care system” as a whole.15 George Abbott, then Similarly, the 2002 report of the Commission on the Future British Columbia’s Minister of Health, co-chaired the task of Health Care in Canada (popularly known as the Roma- force. The Progress Report recognized the limits of what now Report) discussed the “growing importance” of as- individual jurisdictions could achieve on their own and sessing health technologies, including pharmaceuticals.11 identified a corresponding need for jurisdictions to work It also described the need to conduct “a comprehensive together.16 The report also identified pharmaceutical safeand systematic assessment of the conditions for and the ty, effectiveness and appropriate use as a key issue and consequences of using health care technology.”12 These opportunity in the area of pharmaceutical management, assessments provide decision-makers with information stating: about a technology’s “safety, economic efficiency, clinicThe majority of evidence regarding pharmaceutal effectiveness, as well as the social, legal and ethical ical therapies is gathered through clinical trials in implications of using new and existing technologies … highly controlled environments in the pre-market [so that] health policymakers, providers, and especially, phase. This limits the ability to predict a drug’s health organization managers [can] make decisions about performance in the “real world.” Evidence from whether to purchase and use new technologies, whethpre-market testing also provides little basis for er to replace old technologies with new ones, and what gauging the benefits and risks of new medications benefits they can expect to see.”13 Romanow criticized relative to existing drugs or non-drug therapies. the “lack of relevant research on the relationship between These challenges can be met by working together health technologies and overall improvements in health to enhance and focus research capacity so that 10 British Columbia Royal Commission on Health Care and Costs, Closer to Home: Summary of the Report of the British Columbia Royal Commission on Health Care and Costs, Vol. 1, 1991, 30. 11 Commission on the Future of Health Care in Canada, Building on Values: The Future of Health Care in Canada – Final Report (Ottawa: Commission on the Future of Health Care in Canada, 2002), 83. 12 Health technologies are defined by the International Network of Agencies for Health Technology Assessment as including “pharmaceuticals, devices, procedures and organizational systems used in health care.” International Network of Agencies for Health Technology Assessment, “What is Health Technology Assessment (HTA)?” . 13 Commission on the Future of Health Care in Canada, Building on Values: The Future of Health Care in Canada – Final Report (Ottawa: Commission on the Future of Health Care in Canada, 2002), 83. 14 Commission on the Future of Health Care in Canada, Building on Values: The Future of Health Care in Canada – Final Report (Ottawa: Commission on the Future of Health Care in Canada, 2002), 84. 15 Federal/Provincial/Territorial Ministerial Task Force on the National Pharmaceuticals Strategy. National Pharmaceuticals Strategy Progress Report (Ottawa: Health Canada, June 2006), 6 . 16 Federal/Provincial/Territorial Ministerial Task Force on the National Pharmaceuticals Strategy. National Pharmaceuticals Strategy Progress Report (Ottawa: Health Canada, June 2006), 6 . CHAPTER 4 decision-makers have the information they need to make optimal treatment and reimbursement decisions. By collaborating with academic experts, health care institutions, health care professionals and the public, governments can coordinate existing activities, support synchronized evidence standards and encourage evidence-based treatment, utilization and prescribing decisions.17 PharmaNet information, when used with other sources of administrative health data such as hospital admissions, vital statistics or Medical Services Plan records, can provide valuable and statistically relevant insights on the health outcomes of pharmaceuticals from a population-level perspective. Administrative health data can also be used to develop educational programs for health care practitioners through the monitoring and assessment More recently, the Citizens’ Reference Panel on Pharmac- of their prescribing practices with a view to helping them are in Canada recommended that any drugs covered by make better health care decisions (such as which drugs to a national pharmaceutical strategy should “continue to prescribe and when). In addition, this data may be used be proven effective and safe through impartial clinical to monitor and evaluate the cost-effectiveness of various policy initiatives. As described in a recent report: studies.”18 4.2.3  Using Administrative Health Data to Evaluate Pharmaceutical Use, Safety and Effectiveness British Columbia is well positioned to undertake ongoing “real-world” pharmaceutical assessments because it has a rich trove of administrative health data from many sources, including PharmaNet, Medical Services Plan, hospitals, and mental health and addictions services.19 Since January 1, 1996, one of these sources, PharmaNet, has contained a record of all prescriptions dispensed to individuals by community pharmacies anywhere in the province. PharmaNet may also contain records of drugs provided while a person is in a hospital or designated mental health centre if this information is entered by an emergency department physician. In addition to prescription records, PharmaNet contains demographic information, including the name, Personal Health Number, address and date of birth of the people who obtain prescription medications.20 The volume and variety of data relevant to research have increased exponentially in recent years. Each patient interaction with a physician, a pharmacist, a laboratory technician, or hospital staff generates data. Social and environmental data are highly relevant to health research because they are vital for providing a complete picture about factors that affect the lives and health of Canadians. The research community, including health system innovators in hospital and government offices as well as academic researchers and clinicians, views these data as a critical resource. It recognizes the enormous potential of using health and health-related data in privacy-sensitive ways to reveal factors that can affect health and well-being, and discover interventions that can improve health outcomes.21 Simply put, access to and analysis of administrative health data by qualified researchers can help save lives. Using administrative health data to conduct research and 17 Federal/Provincial/Territorial Ministerial Task Force on the National Pharmaceuticals Strategy. National Pharmaceuticals Strategy Progress Report (Ottawa: Health Canada, June 2006), 7 . 18 Citizens’ Reference Panel on Pharmacare in Canada, Necessary Medicines: Recommendations of the Citizens’ Reference Panel on Pharmacare in Canada (Vancouver: Pharmaceutical Policy Research Collaboration, UBC, 2016), 26. 19 Administrative health data is health data generated through the routine administration of health care programs. Examples of administrative health data include that from physician visits, hospitals’ discharge abstracts, personal care homes, home care, and pharmaceutical prescriptions. Source: Manitoba Centre for Health Policy, “Term: Administrative Health Data,”8 July 2013 . 20 Ministry of Health, “What information is stored on PharmaNet?” . 21 Council of Canadian Academies, Accessing Health and Health-Related Data in Canada: Expert Panel on Timely Access to Health and Social Data for Health Research and Health System Innovation (Ottawa: Council of Canadian Academies, 2015), xiii. 39 40 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS evaluations to inform policy development is a key part British Columbians have access to proven and effective of an “evidence-based” or “evidence-informed” policy drug therapies at a price government can afford.24 approach.22 One of the principles underlying government The Ministry of Health introduced the RDP in 1995 to help support for research on the effectiveness of drugs, the address rapid increases to the costs of drug therapies. The effectiveness of pharmaceutical policies, and the educa- RDP is premised on the rationale that in the absence of tion of physicians and pharmacists is that policy decisions evidence that newer or more expensive drugs provide a should be based on – or at the very least informed by – the therapeutic advantage over other equally effective treatbest available scientific evidence. Comments about the ments, the ministry should pay for the less expensive alvalue of evidence-based policy making appeared in the ternative, unless the higher-priced or newer alternative 1991 Royal Commission report: is medically necessary. The focus of the health care system must be on Implementing a reference-based pricing model requires providing those services which improve health policy-makers to have evidence about the effectiveness outcomes. These outcomes must be defined, of pharmaceutical therapies in order to determine whether measurable, subject to analysis and be able to be newer or higher-cost drug therapies provide clear benefits independently evaluated. Services which cannot to patients that other drug therapies do not. While there be shown to improve health outcomes should not was (and continues to be) significant resistance to the be funded by the health care system.23 government’s reference pricing model from the pharmaceutical industry 25 and from some patient and medical professional advocacy groups, 26 independent studies have concluded that the RDP has played a role in containing Over the past 20 years, British Columbia has shown the rising costs of pharmaceuticals in British Columbia, leadership in developing an evidence-based approach particularly in the first years after it came into effect, with that makes use of administrative health data when de- no “severe negative effects” on patient health.27 veloping, implementing and evaluating pharmaceutical policy decisions. An important example is the province’s As will be discussed in more detail below, the RDP was Reference Drug Program (RDP). The RDP was an early one of several ways the Ministry of Health sought to instep toward addressing the challenge of ensuring that corporate evidence of therapeutic outcomes into its policy decisions. Moreover, the emphasis on evidence-based 4.2.4  Evidence-Based Policy Making: Reference Drug Program 22 In general, evidence-based decision making is premised on the idea that the best available evidence is at the core of properly developed decisions (as opposed to opinion-based decision making, which relies on selective use of evidence and untested views of individuals or groups, often inspired by ideological perspectives, superstition, non-scientific prejudices, and so on). Particularly in the health care field, there is a strong perception that “evidence-based” means only accepting evidence from randomized controlled trials or meta-analysis as relevant to decision making. In this sense, “evidence-based” has been criticized for turning practitioners into technicians rather than creative problem-solvers. As a result of the criticism, many groups and individuals have begun using the term “evidence-informed” decision making as a way of broadening the kinds of evidence that can be considered useful in decision making (meaning, the gold standard evidence is not always necessary to make an evidence-based decision). It is a more pragmatic approach to decision making which can take into account stakeholder perspectives and clinical experience and judgment. See, for example, Donna Ciliska, Introduction to Evidence-Informed Decision Making, Canadian Institutes of Health Research . 23 British Columbia Royal Commission on Health Care and Costs, Closer to Home: Summary of the Report of the British Columbia Royal Commission on Health Care and Costs, Vol. 1, 1991, 6. 24 The Reference Drug Program continues today and, according to the Ministry of Health, “helps PharmaCare save millions of dollars each year,” which is then “used to fund drugs for which fewer treatment options exist.” See Ministry of Health, “Reference Drug Program” . 25 As described in Steve Morgan and Colleen Cunningham, “The Effect of Evidence-Based Drug Coverage Policies on Pharmaceutical R&D: A Case Study from British Columbia,” Healthcare Policy, 3(3) (February 2008). 26 See, for example, Gail Attara, “Reference Drug Program Changes Mean Less Choice for B.C. Patients,” Huffpost British Columbia, 17 February 2016 . 27 Sebastian Schneeweiss. “Reference drug programs: Effectiveness and policy implications,” Health Policy, 81(1) (April 2007): 17-28. CHAPTER 4 policy making was not limited only to the Pharmaceutical Services Division. Program areas throughout the ministry implemented similar evidence-based policy structures to address their own unique policy environments. This work often overlapped with similar work being done at the provincial health authorities and other ministries within government. 4.2.5  Auditor General Reports on EvidenceBased Policy Making top management and chronic understaffing.”30 The Auditor General’s 2006 report found that: drugs initially undergo rigorous review for cost-effectiveness but limited review later to assess continued cost-effectiveness 31 more should be done to inform physicians about best practices in drug prescribing and enhance access to PharmaNet 32 The Auditor General’s recommendations included develThe Auditor General recognized the potential value to the oping a process to systemically assess cost-effectiveness Ministry of Health of implementing an evidence-based of already funded drugs; “significantly increas[ing]” suppolicy-making model. In reports released in 1999 and port for “PharmaCare sponsored programs that encourage 2006, the Auditor General reviewed how the ministry appropriate drug use through physician best practices in was managing its PharmaCare program and paid par- prescribing”; using PharmaNet to identify trends in preticular attention to the steps the ministry could take to scribing practices and to inform physicians that their own manage drug costs by establishing systems to more fully prescribing practices followed currently recognized clinical evaluate the therapeutic effectiveness of pharmaceuticals best practices.33 The message from the Auditor General was clear: change was needed to effectively manage for patients.28 In its 2006 report, the Auditor General emphasized the PharmaCare. need for the ministry to focus on a results-based ap- 4.2.6  Creation of Pharmaceutical Services proach to meet its objectives. For example, the Auditor Division General noted that academic evaluations obtained by the ministry had suggested “that drug costs have risen The same year the Auditor General issued his 2006 report more slowly in British Columbia since PharmaCare has and the federal-provincial Ministerial Task Force issued its focused drug coverage decisions on evidence of positive call for greater collaboration on pharmaceutical research patient outcomes (often it is the older drugs that are able and policy making, Bob Nakagawa became the Assistant to provide a history of success).”29 The report noted, how- Deputy Minister in charge of the newly created Pharmaever, that the ministry was prevented from developing a ceutical Services Division (PSD), a position he held from more comprehensive approach to planning, monitoring February 2006 until March 2012. Mr. Nakagawa played and reporting due to its focus on other priorities. Overall, a central role in the development of PSD during that time. the report noted, “the issues themselves have become He was responsible for both conceiving and implementing more compelling and PharmaCare’s momentum to move the division’s management structure. He also largely deon them constrained by regular turnover of PharmaCare’s vised and oversaw the implementation of the key strategic pillars for PSD’s research direction throughout this period. 28 Office of the Auditor General, Managing the Cost of Drug Therapies and Fostering Appropriate Drug Use (Report; 1998/1999: 2), and Office of the Auditor General, Managing PharmaCare (Report; 2005/2006: 8). 29 Office of the Auditor General, Managing PharmaCare (Report; 2005/2006: 8), 4. 30 Office of the Auditor General, Managing PharmaCare (Report; 2005/2006: 8), 3. 31 Office of the Auditor General, Managing PharmaCare (Report; 2005/2006: 8), 5-6. 32 As good examples of such programs that were already in operation, the Auditor General pointed to drug information letters and workshops for doctors and pharmacists conducted by the Therapeutics Initiative, and academic drug detailing with doctors on the North Shore (which later expanded into the province-wide program, Provincial Academic Detailing). Office of the Auditor General, Managing PharmaCare (Report; 2005/2006: 8), 6. 33 Office of the Auditor General, Managing PharmaCare (Report; 2005/2006: 8), 8-9. 41 42 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS Both then-Minister of Health George Abbott (2005– engagement with patient groups, doctors and pharmacists 2009) and then-Deputy Minister of Health Gord Macatee by promoting the adoption of educational and best-practi(2006–2009), told us they had expressly approved Mr. ces initiatives related to prescribing and dispensing drugs. Nakagawa’s formal strategy framework for PSD that Mr. The model proceeds on the basis that government’s role is to ensure that public resources are directed to drugs Nakagawa initiated in 2006.34 that are – according to independent scientific evidence – 4.2.6.1  Philosophical Approaches effective against the condition they are intended to treat In his interview with our office, Mr. Nakagawa described and do not result in adverse health outcomes for patients. the different philosophical approaches he encountered The premise of this more expansive model is that it will, if in the ministry regarding the role of government in ad- properly administered, help government save money on ministering a publicly funded pharmaceutical program. drug costs, improve health outcomes and reduce other Mr. Nakagawa indicated that these differing viewpoints health system expenditures. split generally into two broad camps and the ministry’s approach has shifted back and forth over time. One ap- Mr. Nakagawa’s appointment coincided with the release proach views government’s primary responsibility as that of the recommendations in the Auditor General’s report, mandate was to implement its of an insurer, focused primarily on paying for those drugs and part of Mr. Nakagawa’s 36 recommendations. He saw his role at PSD as an opporlisted in the formulary. Within this approach, the ministry makes an initial decision about which drugs will be cov- tunity to focus on pharmaceuticals in a comprehensive ered, determines whether any limitations need to be im- way, and thus his approach favoured the second approach posed through the special authority process and ensures described above. This is reflected in a 2006 PSD Annual individuals are properly reimbursed in accordance with Performance report which stated, “our division’s work PharmaCare rules. The Auditor General criticized aspects does not end when a drug is available to the public.” Rather, PSD’s focus was on supporting “optimal drug therapy of this approach in his 2006 report.35 for all British Columbians.”37 The second approach goes beyond the insurance model to envision a broader role for the ministry. In this approach, Mr. Nakagawa’s approach was also influenced by the the ministry takes additional steps to encourage the recognition that the ministry’s pharmaceutical budget cost-effective use of public money by understanding the had increased significantly over the preceding decade. use and effectiveness of approved drug therapies. As well, For example, his 2006 Pharmaceutical Strategy Framethe ministry proactively supports ongoing assessments work noted that total spending for drug therapies paid of drug therapies and research and evaluation projects through PharmaCare and the BC Cancer Agency and for that take population health outcomes into account when HIV/AIDS nearly doubled between fiscal years 1999/2000 38 decisions are made about which drugs to fund and to to 2006/2007 from under $600 million to over $1 billion. continue funding. This model also includes stakeholder Moreover, projected costs were expected to reach $1.2 34 Bob Nakagawa, A Pharmaceutical Strategy Framework for British Columbia: A structure for advancing the quality of prescription drug use, June 2006. 35 The Auditor General stated in Managing Pharmacare: “…once new drugs are added to the official list of covered drugs (known as the “formulary”), PharmaCare does not have a process in place to assess their continuing cost-effectiveness. As well, because many of these drugs were added to the formulary before such rigorous reviews were carried out, there is a risk that some may have outlived their usefulness and should not necessarily be covered any longer.” Office of the Auditor General, Managing PharmaCare (Report; 2005/2006: 8), 5. 36 Bob Nakagawa, A Pharmaceutical Strategy Framework for British Columbia: a structure for advancing the quality of prescription drug use, June 2006. The Auditor General’s report was one of the sources the Pharmaceutical Services Division used to establish its objectives. See: Ministry of Health, Pharmaceutical Services Division, 2007/2008 Divisional Plan, 6. 37 Ministry of Health, Pharmaceutical Services Division, Annual Performance Report 2006, i. 38 Bob Nakagawa, A Pharmaceutical Strategy Framework for British Columbia: A structure for advancing the quality of prescription drug use, June 2006, 4 (fig. 7). CHAPTER 4 billion by the 2008/2009 fiscal year.39 Faced with these challenges, Mr. Nakagawa told us he was expected to oversee and implement a multi-pronged strategy to address these rising costs while also ensuring British Columbians had access to the effective drug therapies they required. making. For example, one described an interaction with a lobbyist who was expressing his strong disapproval of a recent listing decision. At the same time, however, these decision-makers were quick to emphasize that government is well aware of the perspective of the pharmaceutical companies. They pointed out that government has often As described above, both the Minister of Health and the taken a hard line with pharmaceutical companies – for Deputy Minister at the time expressly approved the plan example, when negotiating the price government will pay Mr. Nakagawa developed. During our interview with for- for a particular drug. mer Minister Abbott, he called evidence-based research 4.2.6.2  Development of a Pharmaceutical Management the “gold standard” for policy decisions. He confirmed Strategy he was aware of Mr. Nakagawa’s work and said he ex- To achieve his goals, Mr. Nakagawa established what he pected his Deputy Minister and all of his Assistant Deputy called a “comprehensive pharmaceutical management Ministers to be “creative” and “innovative” in addressing strategy” with five distinct pieces designed to focus on the myriad issues facing the ministry. Similarly, when we the development of the best policies, the best prescribing, spoke with former Deputy Minister of Health Gord Ma- the best environment, the best drugs and the best deals.40 catee, he referred specifically to Mr. Nakagawa’s June With the support of the Minister and Deputy Minister, as 2006 strategy document and said he fully supported the described above, Mr. Nakagawa organized the structure steps Mr. Nakagawa took to integrate evidence-based of PSD around these goals and created new operational research and policy making into pharmaceutical funding branches within the division to carry the plan forward. and approval decisions. Importantly, Mr. Macatee told The Drug Intelligence Branch would base PharmaCaus he was not just supportive of the plan Mr. Nakagawa re coverage decisions on a critical assessment of the had developed, but that both he and Minister Abbott fully available clinical evidence. expected Mr. Nakagawa to implement the plan in order to address impacts of the ever-increasing costs of drug The Drug Use Optimization Branch would “review patterns of drug use and compare them with therapies on the PharmaCare budget. evidence-based best practices to design programs At the time, the need to begin to address drug costs was and initiatives that will facilitate improved patient a priority for government because the ministry’s budget outcomes in a fiscally-responsible manner. Educacontinued to increase and consume a larger share of the tional programs and initiatives will target prescribgovernment’s overall budget when other ministries were ers, other health care professionals, patients and/or being asked to reduce spending. Mr. Macatee also said he the public.” knew implementing the plan would not be easy because the ministry’s attempts to manage drug costs brought The Policy Outcomes, Evaluation and Research Branch was “dedicated to excellence in eviit into conflict with the pharmaceutical industry, which dence-based pharmaceutical policy for British Colwould regularly pressure government to fund newer and umbians” by researching, measuring and reporting more expensive drugs. the effect of policy initiatives on health outcomes. The senior executives and government Ministers we spoke This branch was intended to support other branches with were keenly aware of the ways in which pharmain PSD by providing advice and assistance through ceutical companies seek to influence government decision research and analysis.41 39 Bob Nakagawa, A Pharmaceutical Strategy Framework for British Columbia: A structure for advancing the quality of prescription drug use, June 2006, 4 (fig. 7). 40 Pharmaceutical Services Division, Ministry of Health, Annual Performance Report 2006, 2. 41 Pharmaceutical Services Division, Ministry of Health, Annual Performance Report 2006, 9. 43 44 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS Three years later, in October 2009, PSD reported its progress in implementing the recommendations from the Auditor General’s 2006 report.42 In this update, PSD reported that it had “fully or substantially implemented” all of the 15 recommendations made in that report. The update highlighted work done to develop a process to systematically assess drug cost-effectiveness. For example, the Policy Outcomes, Evaluation and Research Branch was structured to support evaluations of new and existing drugs, and entered into a contract with the University of British Columbia (UBC) to support this work.43 The update further highlighted that the Director of Research and Evidence Development position within the Policy Outcomes, Evaluation and Research Branch was “now shared by two halftime academic researchers,” Dr. Malcolm Maclure and Dr. Rebecca Warburton, and described their credentials and experience.44 PSD highlighted this, along with other collaborations with external initiatives such as the Drug Safety and Effectiveness Network, as significant pieces of the work it had done to implement the Auditor General’s recommendations. At the time, the ministry was aware of the novelty of Mr. Nakagawa’s bridging approach and its impact on government decision making. The novelty of these synergistic relationships, however, may have unintentionally made this approach more vulnerable to subsequent criticism from those who misunderstood, were unaware of or disagreed with its objectives. 4.3  Evidence-Based Initiatives in the Pharmaceutical Services Division As part of its evidence-based approach, the ministry’s Pharmaceutical Services Division undertook a series of programs, policy initiatives, research and evaluation related to its delivery of pharmaceutical health services. A number of these involved external stakeholders, such as the regulated health professions, patient groups, external researchers, pharmaceutical companies or the federal government, and were the result of complex policy development processes. In the view of those at PSD, evidence-based policy making required them to develop new ways of thinking about Broadly speaking, the initiatives can be grouped into one the work of government that did not necessarily fit into or more of the following categories: traditional structures. Individuals such as Dr. Malcolm “coverage with evidence development,” which is Maclure and Dr. Rebecca Warburton straddled the world research to help government assess whether it of government and academia, using their knowledge to should provide ongoing PharmaCare coverage for a better inform both research and policy-making. Under particular drug or class of drugs (Alzheimer’s Drug Nakagawa’s leadership the ministry’s attempts to bridge Therapy Initiative) the worlds and work cultures of PSD staff and the academic research community was done purposefully, as it educational initiatives aimed at doctors and pharmacists and related to prescribing or dispensing pracwas viewed as an important aspect of PSD’s strategic tices (Education for Quality Improvement in Patient framework for establishing a therapeutically oriented Care [EQIP]; Provincial Academic Detailing [PAD]; pharmaceutical management strategy. With the approval Medication Management Program [MMP]) of the Minister and Deputy Minister, Mr. Nakagawa saw linkages between the ministry and the research commun- grants to external bodies to promote eviity as a “synergistic” relationship that benefited all parties. dence-based research on pharmaceutical service 42 Response from the Ministry of Health Services, as published in Office of the Auditor General, Follow-up Report: Updates on the implementation of recommendations from recent reports, October 2009, 83. 43 Response from the Ministry of Health Services, as published in Office of the Auditor General, Follow-up Report: Updates on the implementation of recommendations from recent reports, October 2009, 90. 44 Response from the Ministry of Health Services, as published in Office of the Auditor General, Follow-up Report: Updates on the implementation of recommendations from recent reports, October 2009, 91. CHAPTER 4 delivery (Pharmaceutical Outlook Research Special Authority ePrescribing and eEducation [PhORSEE]) 45 was under increasing pressure from patient groups to cover a group of cholinesterase inhibitors for Alzheimer’s treatment. Although Health Canada had approved this evaluations of the effectiveness of policy initiaclass of drugs for Alzheimer’s treatment in 1997, the mintives, aimed at determining whether the policy was istry did not fund these drugs under PharmaCare at the achieving its expected goals, such as a change in time. Earlier studies supported the ministry’s decision and prescribing practices, drug expenditures or patient the prevailing scientific consensus was that there was health outcomes (Academic Detailing Evaluation “insufficient clinical evidence to demonstrate that these Partnership Team [ADEPT]; Medication Management medications are effective treatments for Alzheimer’s Program [MMP]; smoking cessation evaluation) disease.”47 research on the real-world safety and effectiveness Nevertheless, the ministry continued to face pressure to of drugs (Drug Safety and Effectiveness Network cover the drugs in large part because all other provinces [DSEN]; Atypical Antipsychotics Research) 46 in Canada provided some form of coverage for them, and In addition to these initiatives, the Ministry of Health British Columbia was therefore seen as an outlier. Furthermaintained its ongoing relationship with the Therapeutics more, advocates in favour of covering these drugs argued Initiative at UBC. The ministry’s relationship with UBC and that previous clinical studies were incomplete because the Therapeutics Initiative represents one of its longest they had focused on the drugs’ ability to improve patients’ standing attempts to formally incorporate evidence-based cognitive abilities rather than whether they assisted with decision making into its administration of the PharmaCare improving day-to-day functioning.48 Some anecdotal eviprogram. dence suggested that certain patients could benefit from the treatment, but it remained unclear which patients 4.3.1  Alzheimer’s Drug Therapy Initiative might benefit from using these drugs. (ADTI) Needing to address the concerns of its stakeholders, the ministry continued to work with patient groups, the pharmaceutical industry and Alzheimer’s disease researchers to develop a response. In July 2006, PSD hosted a forum at which the ministry and various stakeholders agreed in principle to conduct a research study to address concerns about gaps in the scientific evidence for these drugs. PSD committed to develop a research protocol to advance the The province’s decision to fund a new class of Alzheimer’s initiative and by January 2007 it had drafted “A Framedrugs called “cholinesterase inhibitors” while also funding work for the Development of a British Columbia Study a study into their effectiveness can be seen as an attempt to Determine the Effectiveness and Appropriate use of to navigate a line between these two, sometimes conflict- Alzheimer’s Drug.” The ministry also hired a consultant to ing, priorities. In the early 2000s the Ministry of Health As the preceding discussion makes clear, the provincial government is constantly assessing how to respond to requests from patient groups, drug companies, doctors and other stakeholders to fund new drugs for diseases. Ideally, the funding decision should consider whether a particular new drug is effective. However, such evidence is not always readily available, or is incomplete. 45 In B.C., the Ministry of Health was focused on using information technology to provide the best possible patient care and implementing electronic prescribing through B.C.’s “E-Health” program. As well, the funding to the College of Pharmacists was in line with a pan-Canadian focus on electronic prescribing. The National Pharmaceuticals Strategy had identified electronic prescribing as a means to strengthen the safety, effectiveness and appropriate use of pharmaceuticals. Federal/Provincial/Territorial Ministerial Task Force on the National Pharmaceuticals Strategy. National Pharmaceuticals Strategy Progress Report (Ottawa: Health Canada, June 2006) . 46 This research was not limited to PSD. For example, the contract for research on atypical antipsychotics was held by the Primary Care Division of the Ministry of Health, not PSD. 47 Ministry of Health, Pharmaceutical Services Division, Annual Performance Report 2006, 3. 48 Ministry of Health, Pharmaceutical Services Division, Annual Performance Report 2006, 3. 45 46 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS work with stakeholders to develop a study protocol that incorporated their varying perspectives.49 Simultaneously, PSD struck several committees including a project advisory committee and a study design committee to provide recommendations to government and work with researchers to develop the research components of the study. The project advisory and study design committees were made up of ministry staff and representatives from the Alzheimer Society of British Columbia, the University of British Columbia (UBC), the University of Victoria (UVic), the health authorities, specialists in geriatric medicine and Alzheimer’s disease researchers. Due to the high profile and political sensitivity of this work the Minister of Health was briefed on both the development of the research protocol and on the proposed membership of the committees advancing the work.50 To work effectively, the ADTI study needed to be carefully planned in terms of both the study parameters and contractual relationships under which the research would occur. It also required specific policy direction that allowed data to be shared for the study in a way that would also protect the personal information of patients. The main ADTI agreement began with an initial commitment of approximately $25,000 to enable completion and approval of the required research ethics application and study design proposal. Obtaining ethics approval for the study design was necessary to ensure the overall project could proceed in accordance with accepted standards of scientific research and to enable the Ministry to publish the study results to increase awareness of its Alzheimer’s research, which was one of the key goals of the ADTI. Once the ethics approval was received, the ministry By July 2007, both the ministry and the stakeholders approved the amendment of the main ADTI agreement groups had agreed on the basic structure of the ADTI with UVic to formally implement the study design. Simulstudy design. At the end of July, PSD Assistant Deputy taneously, the amendment approved the required budget Minister Bob Nakagawa approved the initial proposed increase to approximately $2.3 million, which was conbudget of approximately $70 million. Of this total proposed sistent with the ministry’s pre-approved research budget budget, approximately $64.3 million was earmarked to allocation for this part of the initiative. This contract pay for the drugs for the targeted patient groups. Ap- change was also consistent with the ministry’s plan to proximately $2.8 million represented the budgeted costs divide the preparatory phase of the research project into of the ADTI research itself, with the balance intended to smaller segments to try to avoid anticipated delays in the early stages of the study roll-out. cover education and administrative costs. At the time, the ministry’s goal was that the research com- The ADTI involved a collaboration between the ministry, ponent would provide PSD with the information needed drug companies, the Alzheimer Society of British Columbia, to make an informed listing decision.51 At this point, the and a team of researchers from UVic and UBC who were ministry was committed to getting the study underway responsible for conducting the study. The research was as quickly as possible. Years of work and engagement expected to last up to three years and involve more than between the ministry and its stakeholders culminated 25,000 British Columbians diagnosed with mild to mod53 on October 4, 2007, when then-Premier Gordon Camp- erate Alzheimer’s disease. The study itself was made up bell announced that the province would fund coverage of several related projects, each of which addressed an of three cholinesterase inhibitors for participants in the aspect of Alzheimer’s disease treatment that the ministry wanted to investigate as part of its core goal to assess ADTI study.52 the use and effectiveness of cholinesterase inhibitor drugs. 49 Ministry of Health, Pharmaceutical Services Division. “A Framework for the Development of a British Columbia Study to Determine the Effectiveness and Appropriate use of Alzheimer’s Drug,” January 2007. 50 Ministry of Health, “Minister’s Meeting with the Alzheimer Society of British Columbia (BC),” information briefing document, 29 December 2006. 51 Ministry of Health, “Minister’s Meeting with Minister July 30, 2007 re Alzheimer Study”, information briefing document, 23 July 2007. 52 Ministry of Health, “B.C. Commits $70 Million to Alzheimer’s Drug Study,” news release, 4 October 2007. 53 Ministry of Health, “B.C. Commits $70 Million to Alzheimer’s Drug Study,” news release, 4 October 2007. CHAPTER 4 For example, the main ADTI research initiative included five different studies under its umbrella. In brief, these studies were: Utilization of Cost Project: cost effectiveness of prescribing cholinesterase inhibitors Clinical Epidemiological Project: who benefits from treatment Seniors’ Medication Study: studying patients and caregivers in their first year of taking cholinesterase inhibitors and decisions to stop, switch or continue medication when no beneficial response is apparent Clinical Meaningfulness in Alzheimer Disease Treatment (CLIMAT) Scale: testing a new way to measure patients’ responses to the treatment Caregiver Studies: studies on how cholinesterase inhibitors affected the quality of life of informal caregivers supporting family members and friends with memory loss including dementia, and caregivers’ opinions and experiences of the impact of cholinesterase inhibitors on the quality of life of patients.54 participation of the pharmaceutical industry. Engaging with the pharmaceutical industry was necessary both to secure industry’s support for the “coverage with evidence development” research model and to address the anticipated drug costs. The ministry approved ADTI budgets highlighted the fact that over 90 per cent of the anticipated project costs would come from covering the drug costs for the study participants. To help address these cost concerns, the ministry and the drug manufacturers agreed that industry would fund part of the drug costs to reduce the cost burden to government. From the time a comprehensive Alzheimer’s study was contemplated in the early 2000s until the completion of the ADTI final report in 2015, the ministry’s involvement was central to both building the required stakeholder consensus and steering the project toward completion. After the ADTI was formally announced by Premier Campbell in 2007, the ministry maintained an overall leadership role in respect of the initiative and its employees continued to engage with industry, the researchers, doctors and patient groups to try to achieve the goals of this ambitious study. The ministry’s role was not merely to contract with the researchers and wait for their report to be delivered; rather, the responsible senior executives and staff were consistently engaged with all of the stakeholders to help the project move forward and address issues as they arose. In support of the ministry’s wide ranging interest in issues related to Alzheimer’s disease treatment and its hands-on engagement in the project, the ADTI was not limited to these five sub-studies under the main part of the project led by UVic. For example, at the outset of the project, the ministry contracted with UBC to investigate the state of 4.3.2  Education for Quality Improvement in knowledge of Alzheimer’s disease issues amongst doctors Patient Care (EQIP) and to conduct various educational initiatives and workAs we describe in Chapter 12, EQIP was launched in 2006 shops to increase knowledge and awareness of these as a partnership between the Ministry of Health, the BC issues for front-line clinicians. In another example, as the Medical Association (now Doctors of BC), UBC and UVic. ADTI progressed, the ministry augmented the educational It was part of PSD’s strategy to optimize physician use of component of the ADTI by contracting with UBC to deprescription drugs and, as a result, maintain and improve liver ongoing professional development and education to the health of British Columbians. The EQIP agreement was physicians (both general practitioners and specialists) to the basis for a multifaceted and collaborative initiative enhance their capacity to treat the disease.55 involving multiple people over many years. Its genesis was The collaborative nature of the ADTI was also reflected in the leadership role government played in securing the 54 A more in depth description of these studies can be found at University of Victoria, “Alzheimer Drug Therapy Initiative: General Information,” . 55 Ministry of Health and the University of British Columbia, UBC-ADTI-2008 Transfer Under Agreement, 15 September 2007; Ministry of Health and the University of British Columbia UBC-ADTI-EDU-2010 Transfer Under Agreement, 1 October 2010. 47 48 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS in the late 1990s through The Better Prescribing Project funded by the federal government.56 The EQIP initiative provided family physicians with personalized computer-generated prescribing portraits for a particular disease or health topic with educational messages and case studies that “encourage reflection on practice.” These portraits were a “snapshot” of an individual physician’s prescribing practices created by PFIA, one of the EQIP subcontractors, using de-identified administrative data. After the portraits were sent to the doctors, they were returned to researchers and scientifically evaluated to assess the impact of the portraits on physicians’ prescribing practices. The ministry’s engagement in this initiative was consistent with its mandate to support patient care and a costeffective health system. For example, the first drugs chosen for EQIP portraits were anti-hypertensive and statin drugs for blood cholesterol. The portraits included information related to the therapeutic value of each drug and information about the relative cost-effectiveness of the drugs. The project goal was to inform physicians about the therapeutic value and the relative cost of each drug, so they could make prescribing decisions informed by both sets of facts. component that would permit future effectiveness studies of the prescribing portraits in order to assess the overall effectiveness of the initiative.58 4.3.3  Medication Management Project (MMP) “Medication management” is the term pharmacists use to identify, resolve and take responsibility for the medication-related issues of individual patients in order to optimize their health outcomes as they relate to pharmaceutical drug therapy. The BC Medication Management Project (MMP) was a collaboration between the PSD and the BC Pharmacy Association (BCPA) whereby the BCPA agreed to implement certain changes to generic drug pricing and the fees charged by pharmacists for their dispensing practices. The resulting savings were used to pay for MMP. The project was intended to support specific changes to dispensing practices and pharmacists’ reviews of patient medications, in order to evaluate specific impacts of patient prescription adaptation (renewing a prescription, changing the dosage, or making a drug substitution) and the costs to pharmacies of providing patient consultations related to prescription adaptation, and develop demonstration projects for medication management and review. MMP was established initially as a pilot project with up to $8 million obtained from the anticipated savings generated by the program. Within the EQIP initiative, a working group was established made up of representatives from a number of The main goal of MMP was to save money and improve pastakeholders including the B.C. Medical Association, tient care, health outcomes and sustainability of the health universities and the self-governing health professional care system by having pharmacists provide medication colleges. As a group, they provided a “forum for planning, management services to promote the safe and effective designing, implementing and evaluating best practice in- use of medications. These goals were broadly consistent itiatives and tools with an aim to expand opportunities for with the ministry’s mandate to promote cost-effective use addressing utilization management of prescription drugs of health services. The ministry also expected that MMP while ensuring best prescribing practices that meet pa- would increase patients’ engagement in managing their tient needs.”57 The working group decided on a specific own health concerns and assist them with achieving their pharmaceutical topic to address, and a focus group then targeted medication therapy outcomes. In providing this determined what information to include in the prescribing service to patients, pharmacists were expected to conduct portrait. The initiative was also contained an evaluation 56 The Health Transition Fund was a $150 million fund which from 1997-2001 supported 140 projects across Canada to test and evaluate innovative ways to deliver health care services. See Health Canada, “Health Transition Fund,” . 57 Ministry of Health and the University of British Columbia, “Appendix 1: EQIP Working Group Draft of Revised Terms of Reference,” EQIP2010 Transfer Under Agreement, 29 May 2009. 58 Using delayed control groups. One group of physicians received a portrait a year before the second group. The ministry could use the second group as a “control” allowing the ministry to evaluate in a methodologically sound way whether and how the portraits had affected the first group’s prescribing practices. CHAPTER 4 thorough assessments of their patients’ medications and medication history to identify, and then resolve, actual or potential medication management issues. In turn, this would help pharmacists identify the existence of potential prescribing problems, such as whether patients were on a drug unnecessarily, were receiving the incorrect dosage or were at risk of experiencing adverse drug reactions.59 At the end of the project, an evaluation team was expected to analyze the data gathered to determine the project’s health impacts and cost-effectiveness. 4.3.4  Provincial Academic Detailing (PAD) and the Academic Detailing Evaluation Partnership Team (ADEPT) Academic detailing is “a method of continuing education in which a trained health care professional meets with a prescriber in their practice setting to provide objective, evidence-based information to influence changes in prescribing practices to improve patient outcomes.60 In 2003, six provinces developed a Canadian Academic Detailing Collaboration (CADC) to represent the academic As of January 2011, 288 pharmacists at 117 pharmacies detailers of Canada in order to promote academic detailing were participating in the project. In July 2010 the minin Canada, collaborate in developing evidence-informed istry entered into another agreement with the BCPA and educational approaches, and facilitate research and evaluothers to replace the 2008 interim agreement. After this ation of academic detailing.61 The CADC, in turn, formed agreement was completed the government brought in new the Academic Detailing Evaluation Partnership Team legislation, the Pharmaceutical Services Act, that both (ADEPT) in 2008 to evaluate how academic detailing in related to and replaced the contractual terms governing Canada had affected real-world physician prescribing the pricing for drugs, pharmacists’ dispensing fees and patterns.62 This research was supported primarily by a some of the services portion contained in the ministry’s grant from the Canadian Institutes of Health Research agreements. Although this legislative change did not spe(CIHR).63 Provincial health research agencies, including the cifically address MMP, it effectively ended the contractual BC Ministry of Health and the Michael Smith Foundation agreements. Nevertheless, the interim agreement had also made contributions.64 generated the anticipated cost savings and the original interim agreement stipulated how the parties would In 2012, British Columbia’s Provincial Academic Detailing distribute the funds after the agreement expired. The (PAD) program was one of only three province-wide govgovernment continued to hold the savings generated by ernment funded academic detailing programs in Canada. Originating in an academic detailing program established the interim agreement. in 1993 for physicians in North Vancouver and West Vancouver, PAD was established province-wide in 2008 and is now delivered through academic detailers employed 59 Under MMP various categories were established including: whether a drug is needed, unnecessary, or suboptimal; whether a dose is too high or low; and whether the drug has caused an adverse reaction or issues with adherence or patient self-management. See Ministry of Health, “BC Medication Management Project,” fact sheet, 25 January 2011. 60 Margaret Jin et al., “A brief overview of academic detailing in Canada: Another role for pharmacists,” Canadian Pharmacists Journal 145(3) (May 2012): 142. 61 Margaret Jin et al., “A brief overview of academic detailing in Canada: Another role for pharmacists,” Canadian Pharmacists Journal 145(3) (May 2012): 143. 62 Margaret Jin et al., “A brief overview of academic detailing in Canada: Another role for pharmacists,” Canadian Pharmacists Journal 145(3) (May 2012): 143.; Malcolm Maclure et al., “Evaluation of the Impact of Canadian Academic Detailing (AD) Programs on Physician Prescribing Practices and Attitudes,” CIHR Partnerships for Health System Improvement Grant, 30 September 2015. 63 Ministry of Health Services, “Academic Detailing Evaluation Partnership Team Funding Request,” 1 November 2010. 64 Margaret Jin et al., “A brief overview of academic detailing in Canada: Another role for pharmacists,” Canadian Pharmacists Journal 145(3) (May 2012): 143.; Malcolm Maclure et al., “Evaluation of the Impact of Canadian Academic Detailing (AD) Programs on Physician Prescribing Practices and Attitudes,” CIHR Partnerships for Health System Improvement Grant, 30 September 2015. 49 50 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS by one of the five regional health authorities.65 The gov- Prior to the PhORSEE initiative, the College did not typicalernment has described PAD as an “innovative” program ly serve as a funding agency for research. To administer that, in the words of then-Minister of Health George Ab- the grant, the College established the PhORSEE Advisory bott, “leads to more effective use of prescription drugs Committee to advise the Registrar of the College on how across the health system, which leads to improved health to disperse the grant funds as laid out in its terms of refoutcomes and also helps the Province to contain drug erence. The PhORSEE Advisory Committee included the spending.”66 Registrar of the College and two other representatives, including the Deputy Registrar, who was the committee’s The similar nature of the ADEPT initiative and the provincial PAD program created opportunity for the ministry chair, four representatives from PSD, and a representative 68 to pursue its broader policy goals in academic detailing. of the research community selected by the committee. Through grant funding, the ministry supported an external The role of the advisory committee necessitated the need evaluation project of PAD. PAD was expected to cost the for a structured decision-making apparatus to enable the ministry over 11 million dollars over a five year period and Registrar to make funding decisions that were consistent the ministry wanted to assess whether PAD was effective with the objective of the grant and that advanced the so that it could consider alternative policy approaches. interests of both the College and the stakeholders. This kind of evaluation was consistent with the ministry’s practice of regularly evaluating its policy decisions. PSD’s decision-makers believed the province would benefit from the quality improvement that was likely to result from ADEPT’s pan-Canadian, external evaluation of the PAD program.67 Under its terms of reference, the advisory committee’s mandate was to provide strategic advice and recommendations to the College’s Registrar and to researchers who had submitted grant proposals to conduct research consistent with the purposes of the grant. The advisory committee was specifically authorized to receive, review and evaluate grant proposals and make funding recom4.3.5  Pharmaceutical Outlook Research on mendations to the Registrar. The advisory committee had Special Authority (PhORSEE) the overall responsibility to make recommendations to In March 2008, PSD granted $2.1 million to the College of align any granting decisions with the College’s objectives. Pharmacists of British Columbia to improve patient safety The final decisions on which grants to award rested with through evidence-based research on pharmaceutical ser- the Registrar. vices delivery in the province. The funds were granted to While the initiative was underway, the College took steps the College to support research on trends and innovations to attract proposals by developing a broad competitive in the use of PharmaNet and other areas. The granting process to alert researchers that grant funds were availof funds furthered the College’s legislative mandate to able. The ministry’s involvement in the initiative was inprotect the public. At the time, the College was heavily terrupted by its 2012 investigation. This meant that some involved in enhancing patient safety through upgrades of the original grant funds were not distributed by the to the PharmaNet system. The College intended that the College for a period of time. The College informed the research would help inform enhancements to PharmaNet ministry of the unallocated funds, which remained on its to improve work flow for pharmacists that would in turn books for several years. The College eventually received enhance public safety. new proposals that enabled it to grant the research funds 65 Ministry of Health, “PAD Service - About Provincial Academic Detailing,” . 66 Ministry of Health, “Province Promotes Best Practices for Drug Prescribing,” news release, 25 March 2008. 67 Ministry of Health, ”Cliff# 851490 - Academic Detailing Evaluation Partnership Team Funding Request,” decision briefing document, 19 October 2010, signed 1 November 2010. 68 See Pharmaceutical Outlook Research on Safety, e-Drug and e-Education, “PhORSEE Advisory Committee – Terms of Reference,” undated. The representatives from the Pharmaceutical Services Division were the executive directors of POER, DUO and DI, as well as the Co-Directors of Research, Dr. Malcolm Maclure and Dr. Rebecca Warburton. CHAPTER 4 to advance studies consistent with the purposes outlined in the original grant. limited to the Pharmaceutical Services Division or the Ministry of Health. Moreover, the toolkit demonstrated that the procurement relationships between the province and universities contained unique aspects that distinguished 4.4  Government’s Relationships them from other kinds of procurement relationship agreewith Universities - The Research ments that the province had the authority to enter. For example, the toolkit reinforced governments pre-existing Relationships Toolkit policy that enabled the universities to be treated in the The Research Relationships Toolkit was created by the same way as other parts of government for procurement Working Group on Provincial Government-University purposes. Among other things, this meant government Research Agreements in 2008 as an outcome of work could enter into specified agreements with the universities undertaken by representatives from various provincial directly without having to tender the contracts through a government ministries and BC universities.69 The work- competitive process. The approved template agreements ing group produced a final report that recognized that also ensured that government had the authority to ensure research relationships between the province and univer- the agreements were administered appropriately through sities are “designed to serve the public interest” and can the agreed upon audit and oversight provisions. provide substantial benefits to researchers, universities, The toolkit template agreements also reflect the role the the province and society as a whole.70 The working group universities have both conducting research in the public developed the toolkit as a way to encourage these collab- interest and their own interest in publishing the results. As orative relationships while recognizing that universities such, the toolkit template agreements also incorporated and the province have different organizational structures terms intended to enable university researchers’ ability and reasons for entering into research agreements.71 This to publish, to preserve academic independence, and adinitial toolkit was approved by the Ministry of Advanced dressed the how intellectual property rights would be Education, Legal Services Branch, the Intellectual Property addressed between government and the universities.74 Program and Risk Management Branch.72 The toolkit provided a series of sample agreements and 4.5  Therapeutics Initiative reference documents intended to help facilitate negotiations between the province and public universities, reduce 4.5.1  Establishment and Evolving Role the time and effort required to secure an agreement and The Therapeutics Initiative (TI) was established at UBC provide educational material and examples of best pracin 1994 through cooperation between the Department tices.73 The types of agreements covered by the toolkit of Pharmacology and Therapeutics and the Department included grants, sponsored research agreements and of Family Practice. As an entity housed within UBC, the general service agreements. TI is funded through earmarked grants from the Ministry The toolkit’s creation demonstrated that entering into re- of Health to the university. To maintain its independence, search agreements directly with universities was a com- the TI does not accept funding from the pharmaceutical mon and accepted part of how government operated in industry and all individuals associated with the TI are relation to these institutions. Use of the toolkit was not 69 Research Relationships Between the Province of British Columbia and British Columbia’s Universities, Final Report, January 2008, 1. 70 Research Relationships Between the Province of British Columbia and British Columbia’s Universities, Final Report, January 2008, 1. 71 Research Relationships Between the Province of British Columbia and British Columbia’s Universities, Final Report, January 2008, 1. 72 Research Relationships Between the Province of British Columbia and British Columbia’s Universities, Final Report, January 2008, 1. 73 Research Relationships Toolkit, i. 74 The toolkit has been updated periodically. The 2010 toolkit which was the then-current document in 2012 is set out in Appendix C. The toolkit was updated and republished in 2014. 51 52 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS required to disclose any potential conflicts of interest. ƒƒThe TI must continue to conduct evidence The ministry’s affiliation with the TI and UBC provided reviews and provide the PharmaCare program the ministry with access to high-quality researchers who with concrete recommendations about mancould provide information to inform the ministry’s deciaging prescription drug use in the province.75 sions about whether to list drugs on the formulary and The scope of the 2004 agreement was intended to be independent advice about the safety and effectiveness flexible, and this was reflected in the specific deliverables of drugs already listed. set out in the contract. The ministry, UBC and the TI all Currently, the TI’s work is divided into four main areas, viewed their relationship as collaborative. Although the TI each with its own dedicated working group: the Drug was expected to remain at arms-length from government, Assessment Working Group (DAWG), the Education Work- it was empowered to make suggestions to the ministry ing Group (EWG), the Therapeutics Letter Working Group about a range of topics crucial to ministry policy-makers, (TLWG) and the PharmacoEpidemiology Working Group including addressing questions about allowable drug costs, (PEG). Collectively the TI works to provide physicians, making recommendations to list drugs on (or de-list drugs pharmacists and Ministry of Health policy-makers with from) the provincial formulary, and making suggestions up-to-date, evidence-based, practical information on pre- about appropriate prescribing practices and other innovscription drug therapy. ative drug utilization management opportunities. A decade after it was established, the TI entered a new Between May 2004 and March 2012, the ministry’s agreefunding agreement with the ministry in May 2004. Al- ment with UBC was amended several times. The first though the ministry made several subsequent amend- amendment occurred on December 14, 2006. At that time, ments, the 2004 agreement formed the centrepiece of UBC and the ministry agreed to secure a longer term role the ministry’s relationship with the TI until March 2012. for the TI by extending the term from three to eight years Under the 2004 contribution agreement, the ministry pro- (ending in 2012). This term extension also expanded the vided $1 million in annual funding for the TI for an initial TI’s deliverables and opened the door for further funding increases over time. On January 15, 2007, the ministry and three-year term. Although the later amendments to the 2004 agreement UBC amended the agreement again. This time, the ministry extended the TI’s contract term and significantly expanded increased the TI’s funding by an additional $300,000 to its funding, the three core pillars of the TI’s relationship enable it to provide a report to the ministry on the effects with the ministry remained intact throughout this period: of a specific class of drugs. Two more amendments and expansions of the agreement occurred in January and July ƒƒThe TI must continue to remain at arms-length 2007, when the ministry asked the TI to conduct specific from both government and the pharmaceutportions of the research related to the Alzheimer’s Drug ical industry and to use proven professional Therapy Initiative. education principles in its educational outreach program. 4.5.2  Pharmaceutical Task Force Report ƒƒThe TI must act as a source of unbiased therapeutic information for the ministry and must educate physicians and pharmacists. As part of this role, the TI conducted evaluations of its own educational techniques to ensure their ongoing effectiveness. The ministry’s goal in funding the TI was to facilitate practitioners obtaining the information they needed to optimize doctors’ prescribing practices. (2008) It is clear that senior Pharmaceutical Services Division (PSD) executives valued the contributions the TI made to the Ministry of Health’s operation. Over time, however, a number of voices began to criticize the TI’s role, in both its advisory capacity and its impact on the ministry’s drug listing decisions. For example, some other health researchers in the province complained to the ministry that the TI had become a favoured destination for ministry research 75 Ministry of Health and University of British Columbia, TI-2004 Contribution Agreement, 5 May 2004. CHAPTER 4 projects and research funds in a way that unfairly exclud- As a result, the task force recommended that the mined other groups from obtaining ministry work. Further, the istry establish a new Drug Review Resource Committee pharmaceutical industry and some patient groups argued to perform the drug submission review role then being that the TI’s role in the drug listing process restricted conducted by the TI; and suggested that this new review patient access to a broader range of drug therapies. committee create a registry of experts to broaden the pool In November 2007, the ministry formed the nine-member of researchers available to provide recommendations to 81 Pharmaceutical Task Force to examine pharmaceutical ministry decision-makers. The task force also recompolicy and provide government with advice about how mended that the ministry, at a minimum, end the TI’s role the ministry could achieve progress in several areas, in- in the drug listing process and transfer its public education 82 cluding optimization of the drug listing process, procure- function back to the ministry. ment options for pharmaceuticals, and the effectiveness, transparency and future role of the TI in the drug listing process.76 4.5.3  Therapeutics Initiative Reaction to Report From the TI’s perspective, the creation of the task force In its final report, the task force was highly critical of the and its final report represented another attempt by the then-existing drug review and approval process in which pharmaceutical industry to attack the TI’s independent, the TI had a significant role. The task force heard from evidence-based advice to the ministry about its drug listsome senior health authority representatives who sug- ing decisions. Since its inception, both the ministry and the gested that the TI had “been insulated from robust peer TI had been aware that the TI’s work put it in opposition review expected of academic organizations and from the to the pharmaceutical industry, especially when the TI rigours of competitive funding models.”77 The task force concluded that certain drugs should not be approved for criticized the ministry’s evidence-based review process coverage within the formulary. As a result, the TI was for listing pharmaceutical products as being “cumbersome, highly critical of both the task force and its conclusions, unnecessarily insular and less efficient than it should be in and felt they had been unfairly singled out for criticism.83“ providing patients with timely access to coverage.”78 One of the main criticisms the task force consistently heard Moreover, members of the TI believed that the task force’s about the drug review processes, and the dominant role membership was too closely aligned with the pharmaof the TI in it, was that it confined drug reviews to a rela- ceutical industry through the work a majority of members 84 tively small group of experts and thus limited the pool of had done with industry. Because the TI strictly forbids expertise that could potentially be assessing the merits of pharmaceutical industry involvement in its own work, it drug listing submissions.79 The task force concluded that remains concerned about the impact of the industry on most stakeholders outside of the ministry viewed the TI as the development of the ministry’s pharmaceutical policies. “narrow, insular and resistant to meaningful stakeholder engagement.”80 76 The Pharmaceutical Task Force, The Report of the Pharmaceutical Task Force, April 2008. 77 The Pharmaceutical Task Force, The Report of the Pharmaceutical Task Force, April 2008, 8, fn 15. 78 The Pharmaceutical Task Force, The Report of the Pharmaceutical Task Force, April 2008, 6. 79 The Pharmaceutical Task Force, The Report of the Pharmaceutical Task Force, April 2008, 11. 80 The Pharmaceutical Task Force, The Report of the Pharmaceutical Task Force, April 2008, 25. 81 The Pharmaceutical Task Force, The Report of the Pharmaceutical Task Force, April 2008, 27. 82 The Pharmaceutical Task Force, The Report of the Pharmaceutical Task Force, April 2008, 29. 83 Andrew MacLeod, “Life Saving Drug Watchdog May Be Scrapped,” The Tyee, 23 May 2008. 84 Andrew MacLeod, “Health minister Falcon comfortable with drug advisor’s new role with Pfizer,” The Tyee, 19 November 2009. See also Andrew MacLeod, “Drug Firms’ Sway over BC’s New PharmaCare Task Force,” The Tyee, 28 November 2007. 53 54 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS 4.5.4  Role of the Therapeutics Initiative in 2012 By May 2008, the government had accepted all of the recommendations from the Pharmaceutical Task Force report, including those specifically about the role of the TI.85 Implementing the recommendations raised a number of complex challenges for the ministry because it was still implementing the Auditor General’s 2006 recommendations, which advocated for a wider role for the TI. Also, having developed a long-standing relationship with the TI, some senior managers in PSD valued the TI’s past contributions and remained supportive of its future role providing advice to the ministry. Further, the ministry’s existing contribution agreement with UBC was not set to expire until March 2012, and the ministry would have to negotiate with UBC to alter the existing agreement if it wanted to implement the task force’s recommendations. This meant the ministry needed to find a way to balance the implementation of the task force’s recommendations with the need to ensure the ministry continued to receive independent advice while it transitioned the TI’s role. The ministry also confronted additional pressure from critics who opposed the task force’s conclusions and believed the TI’s existing role should be preserved. The changes to the TI’s clinical evidence role also necessitated amendments to the main TI contract to reflect the changed deliverables and the corresponding budget reduction. It took the ministry several months to sort out these issues, between the autumn of 2011 and March 31, 2012 – the expiration date of the then-existing TI contract. The new 2012 amended agreement significantly reduced the scope of the TI’s deliverables and diminished the level of autonomy it previously had to conduct research on the ministry’s behalf. As a result of the amendments, by 2012 the TI’s existing working groups were both reduced and consolidated. 4.6  Public Health Epidemiology and Analysis The Ministry of Health’s Population and Public Health Branch engages in epidemiological surveillance and research using continuously updated administrative health data contained in various provincial databases. The ministry relies on administrative health datasets to estimate the prevalence of diseases and other health conditions across the population – estimates that can then be used to inform and advise public decision-makers on how to best support public health. In response to the task force’s recommendations, the ministry decided to end the TI’s exclusive role providing When seeking answers to questions about the prevalence clinical evidence reviews and to open this work up to of specific medical conditions within a population, epicompetition from other researchers. Once it did so, the demiological teams first determine what administrative ministry then needed to change its existing agreement health datasets contain key indicators of that condition. with the TI to reduce the funding previously allocated for Once a subset of a population is identified, epidemiolothese reviews while still confirming a ministry commitgists are then able to look for patterns and trends in the ment to fund other aspects of the TI’s work. medical records that may help identify what data-based A key step toward implementing the task force’s recom- indicators provide warning signs of the condition. This can mendations was the creation of an open tendering (RFP) then inform decision-makers about what portion of the process for the TI’s former role conducting clinical evi- remaining population is at risk for developing the disease dence reviews. Through this process, the ministry ultim- in the future. Any number of public policy and budgetary ately awarded five individual contracts to fulfil the clinical decisions may be informed by using this method of data evidence review role. With their long history providing analysis. these reviews to the ministry, several members of the TI As such, administrative health datasets can, when used by successfully responded to the RFP and won back some of experts who possess the technical and analytical skill sets the work they had lost, such that three of the five individnecessary to work with the data, play an important role in ual contracts were awarded to TI researchers. informing public policy decision-makers on the health of 85 Ministry of Health, “Government Accepts Drug Plan Recommendations,” news release, 21 May 2008. CHAPTER 4 the populations they serve. Epidemiological surveillance factors that, in our view, contributed to the way in which and research using administrative health data can only the 2012 investigation unfolded. These factors are deoccur, however, when publicly held data sets are made scribed below. available to those experts. The challenges that both government and private researchers experienced obtaining, 4.7.1  The Danderfer Case using and reporting on this data, and the parallel chal- Ron Danderfer, a former Assistant Deputy Minister in lenges that the ministry experienced administering the the Ministry of Health, had chaired the eHealth Steering data, form the backdrop against which many of the events Committee, part of a national initiative to create electronic health records. Also on the eHealth Steering Committee discussed in this report played out. was Dr. Jonathan Burns, a practising physician who ran In 2012, the Ministry of Health did not employ the a health information technology company. data-handling experts necessary to support the work of its own epidemiologists. Rather, it contracted with a pri- In April 2005, Dr. Burns won an RFP competition for a vate firm called Blue Thorn Research and Analysis Group. contract with the Ministry of Health to provide services reAs explained to us by the Assistant Deputy Minister of lated to electronic health records. Mr. Danderfer oversaw Population and Public Health, Arlene Paton, “we were the administration of this contract. In return for increasing almost completely dependent on Blue Thorn staff who Dr. Burns’ contractor rate and total amount of the contract, understood how to pull those datasets together, run the al- and approving the resulting bills that averaged $60,000 gorithms and support us to be able to create those [chronic per month, Mr. Danderfer received personal benefits from disease] registries, the flu surveillance and any number of Dr. Burns for himself and his family.86 other projects. We just did not have the technical capacity In July 2007, then-Deputy Minister of Health Gord Mawithin the ministry.” catee announced that he was asking the Ministry of Fi- 4.7  The Ministry of Health in 2012: Organizational Culture The above sections have described the history of the Ministry of Health’s approach to evidence-based policy making in the years prior to 2012 and the specific steps that the ministry took to implement that approach. By 2012, the expansive and evidence-based approach to policy development and decision making, as reflected by the structure of the Pharmaceutical Services Division (PSD) and its relationships with external researchers, was still firmly in place. nance’s Internal Audit and Advisory Services (IAAS) to investigate after receiving “information about the possible actions of a senior staff person at the Ministry of Health which require answers.”87 Mr. Danderfer and his wife, also a government employee, were suspended with pay that month and later suspended without pay in September 2007. They both retired from the public service in October 2007. The RCMP began an investigation and Mr. Danderfer was charged with four counts of accepting a reward, advantage or benefit from a person dealing with the government. He eventually pleaded guilty to accepting improper benefits as a government official and was sentenced to two 88 In addition to the commitment to evidence-based deci- years’ probation and fined $3,690. sion-making, a number of other important factors were The IAAS’ initial review of this case led it to conduct influencing the organizational culture at the Ministry of a more thorough review of Ministry of Health procureHealth. We identified three underlying systemic or cultural ment and contract management practices by assessing 86 Vaughn Palmer, “Whistleblowers crucial for control,” Vancouver Sun, 9 October 2009; Andrew MacLeod, “RCMP search warrant alleges B.C. health ministry fraud,” The Tyee, 8 October 2009. 87 Ministry of Health. Statement from Gordon Macatee, Deputy Minister, 20 July 2007. 88 “Former minister sentenced over corruption conviction,” Globe and Mail, 15 July 2011. 55 56 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS 85 contracts.89 The review concluded that “while some Therapeutics Initiative (TI), it can be funded and directed good practices are consistently applied by the many staff through external funding entities, and it can be performed in the ministry who are involved in procurement and con- completely independently from the ministry at hospitals tract management, improvement is needed for a number and universities. of other practices. There were indications that the former The ministry holds this data in personally identifiable form, Knowledge Management and Technology Division’s prac- but when it is used for health research, the data may or tices were particularly in need of improvement.”90 may not be personally identifiable, depending on the need This case, and the resulting IAAS review, led to greater of the research. If an analyst or researcher is using only emphasis in the Ministry of Health on contract manage- one database for the research, data can be anonymized or ment and following procurement rules. For example, the de-identified by, for example, taking out names, addresses ministry introduced mandatory training for all contract and exact birth dates. Data may need to be personally managers. Certain types of contracts were required to identifiable in order to link records from one database with be reviewed through the central contract management records from another. Even so, this sometimes can be done office in the ministry (previously, individual program areas by giving each record a unique but anonymous identifier had authority to enter into those arrangements without so that the databases can be linked before providing the external approval). According to the ministry’s Executive linked dataset to the researcher without providing, for Financial Officer, however, the case was an outlier and example, a Personal Health Number. not reflective of problems with the system generally. He British Columbia has robust privacy legislation providing told us he had not “seen anything that leaves me to think rules for the collection, use and disclosure of personal that there’s a systemic problem of people doing [things information held by public bodies, including administrative contrary to policy] intentionally.” health data. The Freedom of Information and Protection of Privacy Act is the principal statute guiding the ministry in this respect. Also applicable, depending on the type of data in question, are the E-Health Act, the Medicare As we have described above, health care providers – Protection Act, the Ministry of Health Act and, in 2012, the including those at hospitals, pharmacies and doctors’ Pharmacy Operations and Drug Scheduling Act, amongst offices – collect a large volume of health information others.91 Adhering to the complex matrix of legislation from patients who interact with our health system. This guiding the protection, disclosure and use of sensitive administrative health data is then held and used by the data requires careful consideration and reasonable legal Ministry of Health in administering health care in British interpretation by public bodies and their employees. Columbia. While the primary purpose of collecting data is to account for and support financial and administrative While these statutes established a legal foundation for decisions of the ministry or to support patient care, that the use and disclosure of information, they were complex same data is also used to conduct health research. In fact, and required that discretion be used in assessing individthe purposes are not mutually exclusive. When operating ual circumstances where data was being requested. In in an evidence-based decision-making model, the ministry this situation policy is an important tool for sound public uses health research to inform its own policies. Health administration. A policy is an internal document, ideally research can be performed internally by ministry employ- created after receiving legal advice, that is designed to ees, it can be contracted out directly to entities like the assist public servants in interpreting and applying complex 4.7.2  Data Culture: Unresolved Concerns about Access to Health Information 89 Internal Audit and Advisory Services, Ministry of Finance, Project No.: 026101 – Report on Procurement and Contract Management Practices, Ministry of Health Services, July 2009, 5. 90 Internal Audit and Advisory Services, Ministry of Finance, Project No.: 026101 – Report on Procurement and Contract Management Practices, Ministry of Health Services, July 2009, 1. 91 Parts of the Pharmacy Operations and Drug Scheduling Act relevant to this discussion were repealed and replaced by the Pharmaceutical Services Act on May 31, 2012. CHAPTER 4 legislation where that legislation is ambiguous or calls for In 2012, the primary policy relied on by the ministry to the exercise of judgment and discretion. While policy is interpret legislation relevant to data access was 13 years not binding, it can helpfully articulate a set of consistent old. Developed in 1999, the ministry’s Data Access Policy principles to apply to particular types of applications and did not provide any guidance on interpreting legislation. decisions, as well as to new problems, arising under the Rather, it delegated the ability to make such interpretagoverning legislation. While policies cannot foresee every tions to key positions within the ministry. By early 2012, potential problem, they can be modified and updated on most delegated authority in this respect lay with the an ongoing basis to respond to new situations and chal- ministry’s Chief Data Steward and the office he oversaw. lenges in a principled fashion, and can assist the people Also in 2012, the Information Management and Knowadministering the statute with avoiding idiosyncratic deci- ledge Services (IMKS) Branch was the steward of adminsion-making and ensuring that similar cases receive similar istrative health data collected and held by the Ministry treatment. When policies are made public, which should of Health.92 This branch was responsible for ensuring that normally be the case, they can also assist the public in any access to personal information contained in adminisunderstanding government decisions and in knowing what trative health data occurred in accordance with relevant to expect in the future. privacy legislation. A section of this branch, called Data While administrative health data is invaluable for public Access, Research and Stewardship (DARS), was responhealth policy making, it contains sensitive information that, sible for reviewing and approving requests for data acif improperly used or accessed, could harm those who cess by outside researchers and the information sharing entrust their personal information to government. agreements the ministry entered into with other public 93 In an effort to facilitate the use of administrative health bodies. Overseeing IMKS, and by extension DARS, was data by researchers and public health officials while simul- the ministry’s Chief Data Steward. taneously mitigating the risks of sharing it, the Ministry of Health developed organizational structures and policies about access to and use of its health data. As the events described throughout this report illustrate however, the structures and policies that existed in 2012 were problematic in many respects. Without adequate policy direction in a highly complex legislative environment, employees had inconsistent and incompatible interpretations of the governing legislation. As described above, decisions needed to be made about the form of the disclosure and use – for example, whether it would be personally identifiable or not, whether it could be linked to other data, and what the data would include. In practice, it was often unclear what office or position was responsible for making those decisions. Together, these systemic factors contributed to the environment in which the complaint that we describe in Chapter 5 was made in March 2012. While the Chief Data Steward had authority to approve or deny internal and external access to the ministry’s administrative health databases, the practical control of much of that data was scattered across multiple offices. There was confusion between those offices about who “owned” specific datasets and how the information they contained could be shared internally and externally. Additionally, there was confusion within the ministry over what constituted personally identifiable information and whether any data, personally identifiable or not, could be shared externally without approval from the Chief Data Steward. One database that became the focus of the investigators’ attention illustrates these issues. The ministry had a Canadian Community Health Survey (CCHS) database that included personally identifiable administrative health data collected by the federal government and shared with the province. This database had, at one point, its own 92 In 2012, this group was known as the Office of the Chief Data Steward and the Information Management and Knowledge Services Branch. Previously, the group was known as Strategic Policy, Information Management and Data Stewardship (SPIMDS). It was a branch of the Health Sector Information Management/Information Technology Division. 93 The Ministry of Health has undergone organizational change since 2012, including in the branches and divisions responsible for data stewardship. As of January 2017, the data stewards responsible for reviewing data access requests and drafting information sharing agreements are in the Access, Audits and Agreements section of the Data Management and Stewardship Branch of the Health Section Information, Analysis and Reporting Division. 57 58 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS dedicated ministry steward who oversaw all aspects of CCHS data, including who was granted access to it – namely, both ministry personnel and external contractors working alongside ministry staff. When the CCHS steward left the ministry, a replacement was never appointed and no practical steps were taken to transition the stewardship responsibilities elsewhere. Without a dedicated CCHS data steward or clear direction on how to proceed in his absence, nobody in the ministry had clear responsibility for handling this data. Despite the organizational challenges, there were three key mechanisms designed to guide the ministry in approving the disclosure of data. As a matter of processes, administrative health data was commonly shared by one of three methods. 1. Academic researchers were provided data through Data Access Requests (DAR) which were reviewed and approved by the Chief Data Steward 2. Public bodies outside the ministry, including service providers to the ministry, were granted data access through information sharing agreements (ISAs) facilitated through the approval of the Chief Data Steward describe the responsibilities of the parties in relation to the shared data, including a variety of security measures and steps required of the receiving party. An ISA includes the provisions listed in a Privacy Impact Assessment (PIA) developed by government. PIAs are used to “evaluate and manage privacy impacts and to ensure compliance with privacy protection rules and responsibilities.”94 Under the Freedom of Information and Protection of Privacy Act, PIAs must be completed with respect to any proposed “enactment, system, project, program or activity.”95 They are designed to ensure that any disclosures are made in compliance with the provisions of the Freedom of Information and Protection of Privacy Act and other applicable legislation that protects the privacy of personal health information. Many of PSD’s research and evaluation projects required PIAs and ISAs, as did projects in other divisions of the ministry. Health authorities needing data access required a PIA and an ISA in the form of a Health Authority Agreement (HAA). Providing administrative health data to ministry staff required a less rigorous process than that for DARs or ISAs. Oaths of confidentiality taken by ministry employ3. Ministry of Health employees and contracted service ees permitted them to receive sensitive personal inforproviders were authorized to receive data by the min- mation contained in the ministry’s administrative health istry’s Data Access Services (DAS) office databases. Ministry practice dictates that employees can Academic researchers wishing to use ministry data began only be provided the minimum amount and detail of data their requests by applying through the pan-provincial plat- that they require to do their jobs.96 Over time, however, form for accessing provincial data, Population Data BC some ministry employees had accumulated access to (PopData BC), which assesses applications in the context multiple databases that they had at one time required of legislative requirements and works with researchers for their employment. The ministry had no clear process and ministries to facilitate data sharing agreements and for reassessing an employee’s need to maintain access contracts. Applying for data access through PopData BC to these databases on a regular basis. As such, some can be costly and time consuming. Ultimately administra- employees retained access to data they had no ongoing tive health data is only shared with outside researchers need to access. once the ministry’s Office of the Chief Data Steward is All three of the above processes were based on the satisfied that all legal requirements are met. foundational principles of “least privilege” and “need to An ISA sets out the terms and conditions under which the ministry releases administrative health data to other public bodies or to an external agency. It is meant to know,” which together are intended to limit information sharing to only the information that individuals require to accomplish the work they are approved and required to 94 Government of British Columbia, “Privacy Impact Assessments” . 95 Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165, s. 69(5). 96 This “need to know” principle is established in the Freedom of Information and Protection of Privacy Act R.S.B.C. 1996 c. 165, s. 33(1)(e)(i) CHAPTER 4 do.97 How these principles were interpreted was, however, unguided by policy. approach to data sharing and believed that there was an inherent risk to any data sharing and that in many cases the risk was simply unacceptable. As a result, they interBecause of the lack of ministry policy direction on data access, when questions arose, there were few resources preted the guiding principles of “least privilege” and “need available to inform staff in their decision-making process- to know,” very restrictively. es. Similarly, supervisors were not able to point to clear The “fundamental legal duties” of data stewards to propolicies to assist them in resolving different interpreta- tect confidentiality when dealing with personal informations of the legislative and policy framework. This resulted tion guide their conduct in dealing with data. However, in practices developing and decisions being made on an those duties can result in “cautious and conservative inad hoc basis. The absence of adequate direction inevitably terpretations” of what access is permitted “when a complaced staff in vulnerable positions, whether they were plementary mandate to enable access to data for research making decisions about data access, using data or trying is not made explicit.”98 The data stewards at the Ministry of Health saw their primary mandate as that of protecting to obtain data for their program areas. personal information. They did not have effective policy 4.7.2.1  Challenges Experienced by IMKS/DARS and the guidance to balance that interest against the benefits Chief Data Steward that may arise from access to the data for public interest As described above, nearly all data access by individuals research purposes, even though this is a use that is exand organizations outside the Ministry of Health, and plicitly permitted under legislation. The cautious approach even some individuals working directly for the ministry to the release of data containing personal information – or in a contract capacity, was approved by the Chief Data data that could be “re-identified” – is not unique to British Steward with the support of those who reported to him. Columbia. As described in a recent report that examined It was here, in the small circle of stewards and analysts access to health data across Canada: – one of whom was the March 2012 complainant to the … data custodians often face an asymmetry – Auditor General – that the lack of clear direction and policy there are clear sanctions if there is a data breach on fundamental questions of data provision was most when they are in charge, but no benefit to them if consequential to the events that began unfolding in the their release of data for bona fide research genspring of 2012. erates important public benefits.99 Well before the allegations that led to the 2012 investigation, some DARS employees, along with a few individuals We heard evidence that some of the employees’ risk from other areas of the Information Management and In- aversion may have stemmed from a “punitive” approach formation Technology Division, had raised questions about that the ministry had taken in the past to the inadvertent how the ministry’s administrative health data should and unauthorized release of data. One Assistant Deputy Mincould be used both internally (by other program areas ister told us: within the ministry) and externally (primarily by research… it was easier for people to not take risks. Beers interested in using the data to analyze public health cause they didn’t want to be punished, or … chasissues and conduct public health research). Some of these tised for making errors. So to me, that was more employees held strong views about how this data should of the sense of risk aversion was not so much they be used. Some employees had a particularly conservative were protecting privacy, not that people didn’t 97 Ministry of Finance, Core Policy and Procedures Manual, “Information Management and Information Technology Management – Personal Information Management,” Section 12.3.3. An individual’s “need to know” is an assessment of how necessary access to certain information is for them to perform their intended task. The principle of “least privilege” means giving that individual the minimum amount of access to that information necessary for him or her to perform that task. 98 Council of Canadian Academies, Accessing Health and Health-Related Data in Canada: Expert Panel on Timely Access to Health and Social Data for Health Research and Health System Innovation (Ottawa: Council of Canadian Academies, 2015), 76. 99 Council of Canadian Academies, Accessing Health and Health-Related Data in Canada: Expert Panel on Timely Access to Health and Social Data for Health Research and Health System Innovation (Ottawa: Council of Canadian Academies, 2015), xx. 59 60 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS care about privacy, but because they didn’t want to be – because the ministry was punitive at times. That data steward’s concerns persisted despite clear contractual prohibitions on sharing data and the fact that This asymmetrical approach by data stewards in the Min- much of the data was released to researchers in a de-idenistry of Health meant that unless a recipient of data could tified form. Her concerns also appeared to be based on provide something close to a complete guarantee that misinformation about particular projects and how health data would be appropriately safeguarded, the data would research is conducted generally. not be released. This placed an extremely high burden on Further, some of the employees drafting ISAs for the minindividuals seeking access to the data. istry had a fundamental misunderstanding about both their Some DARS staff responsible for drafting information own role, and the purpose of an ISA. As described by the sharing agreements simply refused to complete them Chief Privacy Officer at the time, it is at the Privacy Impact for contracts that had already been signed by specific Assessment (PIA) drafting stage that the ministry deterprogram areas within the ministry. These data stewards mines the relevant statutory provisions for disclosing any questioned the legal and financial basis of these signed requested data. Therefore, the ISA needs only to articucontracts that had gone through both a legal and financial late those same provisions for the benefit of the parties to review in the other areas of the ministry. In some instan- the agreement. However, the data stewards drafting the ces these individuals viewed themselves as exercising ISAs would instead take months to do something that in due diligence on contractual and legal issues, despite many cases had already been done and that was, in any their Executive Director cautioning them that this was event, not their role to do. As the ministry’s former Chief not their role. One person who worked on information Privacy Officer told us: sharing agreements told us that that she could not sign off on such agreements until she knew “where the money flowed” for the research so that the ministry could know precisely who could potentially access its data. This individual complained that many of the programs were “murky” in that sources of research funding were not always clear. These concerns were inconsistent with the fact that an ISA limits data access to the agreed-upon individuals or group; data access does not automatically flow to every person involved in a project. Another individual from that area of the ministry gave evidence that she questioned the value of the research being done and believed she was qualified to do so as part of her work. She said: … some of the projects that have been funded have been, to my mind, more experimental than actually valid. It’s experimenting on a population, probably a vulnerable population with no certain outcome that will benefit them … I mean, those kinds of things, just because the researcher says that they’re doing good work, we’ve got no other way to validate or confirm that.100 So what should happen in the cycle is that there is a privacy impact assessment that says you have the legal authority and you’re going to put the protections in place. And that’s why if it’s a system, you need that implementation, one, to make sure that they did actually implement it properly, and then you get the information sharing agreement. Because the privacy impact assessment is what determines the legislative authorities that are being relied upon for the information sharing. So it should be PIA then ISA. And that was one of the issues that we had during the time period that we’re talking about with this investigation, and that was when the centralization happened with the PIAs. But the information sharing agreements didn’t, SPIMDS [IMKS] started doing that privacy analysis, when really that was not their function or their – within their parameters. Some employees from the Information Management and Information Technology Division who held these riskaverse views raised their concerns directly or indirectly with their supervisors and ministry executives. The Chief 100 The evidence we reviewed in our investigation made it clear that none of the research at issue consisted of “experimenting” on a population in the way that this witness characterized her concerns. CHAPTER 4 Data Steward and other Directors and Executive Directors became involved when matters could not be resolved at a lower level. Some of the employees claim that the executives told them to continue with their work despite the employees’ views that the contracts to conduct research using ministry data were contrary to law or not in the best interests of the ministry. The former Chief Privacy Officer described to us what she had seen amongst staff in the data area: I had some real concerns about some of the staff there, and they’re in the emails, who were actually taking it upon themselves to Google people who were named as receiving the data, Google fellow staff people, and start creating potential relationships and potential conflict of interest … I said no, you’ve got to remember who you are, when you’re doing a privacy impact assessment, when you ask a question, the program area thinks it is in relationship to our area of authority, and that it is a valid question. You do not ask them questions that are of interest to you as a comment on PIA. trying to access data and by ministry employees in the program areas whose job it was to facilitate and assist in getting these contractors’ work underway. The tension between the data area and the program areas was evident in many of the records we reviewed from this time period. Both external researchers and ministry employees complained about the delays. For example, the Deputy Director of Knowledge Creation Programs at the Canadian Institutes of Health Research wrote to the Executive Director of PopData BC in March 2011, stating, “if applicants continue to experience long delays in gaining data access, peer review committees will need to take this into account when they rate the feasibility of proposals.”101 In another example, in 2010, the Office of the Chief Data Steward for the ministry, at the behest of some of its employees, required the designated Canadian Network for Observational Drug Effect Studies (CNODES) researcher for British Columbia to apply for data access as an external researcher.102 At the time, PSD believed that the data should be made available to this researcher through an This created a situation where executives in the data area internal mechanism because CNODES was part of the had to continually remind their employees that the con- province’s commitment to contribute to national research tracting decisions of other divisions of the ministry were on drug safety and effectiveness, and part of this coman issue between those program areas and the people mitment involved providing access to PharmaNet data. responsible for contracts – not with the data stewards. This data access issue arose again in 2012 because the Some employees, however, interpreted these comments researcher was unable to access ministry data to contribas an attempt to hide data practices that were inconsis- ute to CNODES in a timely way.103 tent with governing legislation and policy. Together, the In addition to the delays that arose from their perspective concerns about data privacy (and, in some cases, the out- on allowing access to data, the IMKS branch was also right refusal to complete ISAs) and the data stewards’ ul- experiencing a number of staffing challenges, including timate responsibility for deciding whether or not to release general under-resourcing and positions remaining empty data, created significant delays in the ministry’s release of while staff members took extended leaves of absence, information, including to those who were under contract to some of which were due to workplace stress. The branch the ministry to conduct research, evaluation and analysis. was overworked and struggling to keep on top of the huge This resulted in significant frustration by those who were data access application and ISA backlogs and increasing 101 Letter from Knowledge Creation Program, Canadian Institutes of Health Research, 8 March 2011. 102 The Canadian Network for Observational Drug Effect Studies (CNODES) is a pan-Canadian collaboration of researchers that was created as part of the Drug and Safety Effectiveness Network (DSEN) to coordinate and harness the information contained in various health care databases across multiple jurisdictions. This allows for greater evaluation and more precise estimates of drug safety and effectiveness because it is based on larger population datasets across all participating provinces and territories. Canadian Network for Observational Drug Effect Studies, “About CNODES” . 103 In April 2012, Ms. Kislock supported the effort to resolve the data access problem for the researcher to participate in DSEN as part of the overall mission of the government to improve access. Steps for a potential alternative option for the researcher’s data access were provided to PSD. 61 62 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS demands from both inside and outside the ministry. The on the applicable legislation to assist data stewards in ministry also lacked clear policies for some of its data assessing data access requests and drafting data access access processes, in particular for ministry projects and or information sharing agreements. Consequently, one of internal data analysis, as was highlighted in the data her first tasks in conducting the review was to contact the review that led to the Timely Access report described Ministry of Justice’s Legal Services Branch to request a below. These additional factors contributed to the sys- section-by-section breakdown of the relevant legislation. temic delays experienced by analysts and researchers in The report author and her employee then conducted accessing health data. interviews in late February and early March 2012 with The consequences of the systemic delays in accessing various stakeholders, including ministry staff and external data manifested in different ways. Some individuals ac- researchers, in an attempt to understand the causes of the cused researchers who had agreements with the ministry delays. Not surprisingly, their review and resulting draft for direct access to data of being recipients of “preferen- report, titled Timely Access to B.C. Health Data: A Review tial treatment” because they were able to carry out their of the Processes and Recommendations for Change, recresearch while other projects remained delayed. At the ognized a number of the issues described above. same time, program area employees desperate to get their When we spoke with her, the report author said she was research programs off the ground put greater pressure on also “surprised” to learn during the work on the Timely the data stewards to complete the work that would allow Access report that the Ministry of Health did not have their research to proceed. This in turn created greater more centralized processes and procedures for data acsuspicion amongst some data stewards that the data was cess. She said, “there was a lack of knowledge, I thought, being provided for some improper purpose. about who has what data where and what processes are in place for accessing it.” She said, “if I was requesting 4.7.2.2  Data Review and Timely Access Report In 2011, Lindsay Kislock became Assistant Deputy Minister data I would have been very frustrated because there was responsible for, among other things, stewardship of min- a lack of communication … [Applicants were] not underistry data. Mr. Nakagawa told us he had heard concerns standing why this is taking so long.” The report author from researchers about delays in accessing data and had also told us that she learned that internal access to data spoken with Ms. Kislock about the problems soon after by ministry employees also had some challenges unique she started as Assistant Deputy Minister in 2011. He said to the ministry: … you’re assigned access based on your position that from his perspective, researchers could be trusted to to what you need access for, where this gets chaltreat data with “the utmost of care” given that it would lenging … is some of the systems at health are be “career-limiting” for them to be identified as breaching old, really old, right? So we have the old systems their obligation of confidentiality in access to data. and we have new systems and … sometimes Aware of the significant concerns about delay, Ms. Kislock you can’t pull data, someone has to do it for you initiated a review of access to data. This review was led because the system is so old, so some of the rules by the then-Director of Privacy Investigations at the Office and how you access, and the controls are different of the Chief Information Officer in the Ministry of Labour, based on the data you actually have access to … Citizens’ Services and Open Government. In May 2012 so if you needed certain data sometimes from the same individual would become the lead investigator legacy systems, for example if you were doing of the Ministry of Health investigation. As it relates to the a project and needed to know X, if that was on Timely Access report, in order to avoid confusion we refer the legacy system it would have to be pulled for to that individual as the “report author.” you sometimes. The report author told us that when she started her data access review in November 2011, she was surprised to The Timely Access report, a draft of which was completed learn that the ministry did not have a comprehensive guide on July 25, 2012, pointed to lack of guiding principles and processes around the use of data as contributing to the CHAPTER 4 conflict between data staff and program area staff. In this respect, the report stated, “the staff and directors of [DARS] … have historically operated in an environment that lacked clear information governance structures and therefore differing opinions on who actually owns and is responsible for MoH data (i.e. the ministry as a whole, the individual business areas or SPIMDS).”104 Ms. Kislock and the resulting draft Timely Access report looked to be providing a path to resolve the concerns. 4.7.3  Changes at the Executive Level 4.7.3.1  Deputy Minister and Assistant Deputy Ministers In 2012, the Ministry of Health had several senior execuFurther, the draft report recognized the risk-averse culture tives who were relatively new to their roles at the ministry. made it almost impossible for the ministry’s data stewards The Deputy Minister, Graham Whitmarsh, was appointed to agree in a timely manner to the release of data: “the effective March 14, 2011. Mr. Whitmarsh had previously interpretation and subsequent application of” the prin- been the Deputy Minister of Finance. ciples of least privilege and need to know “serve as the Ms. Kislock, Assistant Deputy Minister of Health Servifoundation for many barriers to timely data access due ces Information Management and Information Technology, to excessive risk aversion.”105 The draft report ultimately was appointed to her role effective July 15, 2011, from a concluded that there was “excessively risk-averse bureau- position in the Ministry of Agriculture. In her new position, cratic practices wherein ‘no data sharing is considered the she was responsible for Data Access and Research Serbest data sharing’” and that “data requestors, whether vices, the group that reviewed and approved applications internal or external to the ministry, are subject to dispro- for access to administrative health data. portionate scrutiny on their justifications for needing to At the end of March 2012, Mr. Nakagawa retired from the access data.”106 The report also stated that “many data ministry. His successor as Assistant Deputy Minister of requestors have a sense that they are not trusted and that PSD, Barbara Walman, began her tenure on May 22, 2012. request processes ask too many unnecessary questions.”107 Sandra Carroll began as Associate Deputy Minister and Both ministry staff and researchers were hopeful that Chief Operating Officer on May 28, 2012, having moved the internal review and the Timely Access report would to the Ministry of Health from her previous role in the be able to provide direction to help resolve the seemingly Ministry of International Trade. Both Ms. Kislock and Ms. intractable debate between data stewards and ministry Walman reported to Ms. Carroll. program areas. Unfortunately this was not the case. The internal investigation that began in March 2012 overtook The changeover in senior executive leadership in the the process initiated by the Timely Access review. The Ministry of Health meant that there was limited instiinvestigation ultimately led to the suspension of data ac- tutional memory at this level. While many of the Execcess, cancelled research contracts and the firing of seven utive Directors in the program areas had been in their individuals. The Timely Access report itself was never positions for years, we were told during our investigation that the senior executive did not always seek out or trust finalized and remained in draft format. the knowledge and expertise of the Executive Directors. In many respects the concerns that led to the investigaThis meant that certain senior executives came to rely tion grew out of this years-long conflict between data heavily on the Ministry of Health’s investigation team for stewards and the program areas in the Ministry of Health their understanding of programs, structures and employee about data access processes. The complaint to the Office roles in the ministry. of the Auditor General made in March 2012 emerged from this context just at a time when the steps initiated by 104 Timely Access to B.C. Health Data: A Review of the Processes and Recommendations for Change, draft for discussion, September 2012, 7. 105 Timely Access to B.C. Health Data: A Review of the Processes and Recommendations for Change, draft for discussion, September 2012, ii. 106 Timely Access to B.C. Health Data: A Review of the Processes and Recommendations for Change, draft for discussion, September 2012, 7. 107 Timely Access to B.C. Health Data: A Review of the Processes and Recommendations for Change, draft for discussion, September 2012, 3. 63 64 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS TABLE A: NEW EXECUTIVE APPOINTMENTS AT MINISTRY OF HEALTH – 2011-2012 Graham Whitmarsh Deputy Minister, Ministry of Health – March 14, 2011 Lindsay Kislock Assistant Deputy Minister, Health Services Information Management and Information Technology – June 30, 2011 Arlene Paton Assistant Deputy Minister, Population and Public Health – August 18, 2011 Elaine McKnight Associate Deputy Minister and Chief Administrative Officer – February 10, 2012 Nicola Manning Assistant Deputy Minister, Medical Services and Health Human Resources Division – May 16, 2012 Barbara Walman Assistant Deputy Minister, Pharmaceutical Services Division – May 22, 2012 Sandra Carroll Associate Deputy Minister and Chief Operating Officer – May 28, 2012 4.7.3.2  Chief Data Steward Investigation team, which received its terms of reference Also in early 2012, there was a significant change at the on May 31, 2012, later in the month. Executive Director level in the Data Access, Research and The evidence shows that Ms. Kislock took several steps in Stewardship section. As the Timely Access report had favour of the lead investigator’s candidacy for the position. described, data requests to the ministry were severely Ms. Kislock sought the lead investigator’s input on the delayed. In March 2012, the Chief Data Steward left his position description before the competition began and position and Ms. Kislock sought to have the Timely Access asked for her input on who would sit on the hiring panel. author (and future lead investigator) transferred to the role. The resulting panel included Ms. Walman and the Ministry Ms. Kislock sought approval to transfer the report author of Health human resources employee with whom the lead from her position at the Office of the Chief Information investigator had worked on the job description. The lead Officer to that of the newly vacated Executive Director investigator was the successful candidate when the composition. On March 27, 2012, she wrote to her Manager petition was complete. When we asked Ms. Kislock about of Divisional Operations, “… [She] has the education and these hiring practices, she conceded that in retrospect it experience to help leverage our data holdings, improve was “probably not” the best human resources practice. research and support the Data Stewardship Committee. Somewhat paradoxically, the lead investigator would I imagine a form or business case needs to be completed raise similar questions about hiring practices of two of I have checked her references – so I know what I am the terminated employees. As we discuss in Chapter 6, getting. Can you please work to make this happen for me.” the events leading to the lead investigator’s hiring also However, a lateral transfer could not be done as the new caused confusion inside the ministry and the OCIO about position was at a higher level, which meant there had to her reporting relationships and who bore responsibility for be a competition for the job. At the same time, the future the lead investigators work while the Ministry of Health lead investigator was establishing the Ministry of Health CHAPTER 4 investigation was underway and whether the investigation was independent from the ministry. 4.8  Other Government Entities Involved Government’s response to the 2012 complaint to the Auditor General involved a number of other government entities. Below we provide a brief description of the role of each of these bodies in advising or assisting the rest of government. 4.8.1  Ministry of Finance, Office of the Comptroller General Under the FAA, the Office of the Comptroller General has broad powers to obtain information in order to carry out its financial oversight role. The office has access at all times to all ministries and branches of government and their records.111 The office’s staff may examine any person about a matter that comes within the office’s jurisdiction to check, examine or control.112 When examining individuals, the Comptroller General can issue an order compelling a person to answer questions or to produce a record or thing in his or her possession or control.113 As well, the office’s staff may, at the direction of the Treasury Board, require an officer or employee of a public body to provide information or explanations necessary to enable the Comptroller General to determine whether public money disbursed or spent by government has been applied for the purpose for which it was appropriated.114 In accordance with the Financial Administration Act (FAA) the Comptroller General has the legislative authority to examine financial improprieties within government and The Comptroller General must report annually to the Audmay delegate that authority to individuals working within itor General and the Treasury Board on matters such as the office. The Comptroller General’s duties include provid- unauthorized payments that have not been recovered, ing ministries with direction on loss management (includ- unauthorized expenditures or payments, and “the circuming fraud), investigating a loss incident where appropriate, stances in which an expenditure or payment has been monitoring loss investigations, and providing ministries made that in his or her opinion is in any other way mater115 with guidance and tools for the prevention, detection, re- ially irregular or unlawful.” This dual reporting obligation porting and mitigation of losses.108 Also, at the direction of means that the Comptroller General is directly responsible the Treasury Board, the Comptroller General may examine to government’s central financial decision-making entity and report on “any or all of the financial and accounting (Treasury Board) and an independent external oversight operations of a government corporation.”109 The Comp- agency (Office of the Auditor General). troller General’s work is guided by the policy direction on 4.8.2  Public Service Agency financial management set out in the Core Policy and Procedures Manual for the Public Service, which government Under the authority of the Public Service Act, the Public describes as the “first point of reference” for procurement Service Agency provides human resources advice to core rules and guidelines that all government ministries are government. This includes providing direction, advice and assistance to ministries “in the conduct of personnel poliexpected to follow.110 cies, standards, regulations and procedures”116; advising 108 Financial Administration Act, R.S.B.C. 1996, c. 138, s. 9. 109 Financial Administration Act, R.S.B.C. 1996, c. 138, s. 8(2)(c)(ii). 110 Government of British Columbia, “Core Policy” . 111 Financial Administration Act, R.S.B.C. 1996, c. 138, s. 8(2)(a). 112 Financial Administration Act, R.S.B.C. 1996, c. 138, s. 8. 113 Financial Administration Act, R.S.B.C. 1996, c. 138, s. 8.1. 114 Financial Administration Act, R.S.B.C. 1996, c. 138, s. 8(2)(c)(i). 115 Financial Administration Act, R.S.B.C. 1996, c. 138, s. 35. 116 Public Service Act, R.S.B.C. 1996, c. 385, s. 5(3)(a). 65 66 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS on the application of the Standards of Conduct for public service employees; and providing assistance in responding to and investigating allegations that employees have breached those standards. communications materials. Drafts would be shared back and forth amongst GCPE staff and ministry contacts to ensure both accuracy and a consistent communications message. In 2012, if a ministry sought the assistance of the Public 4.8.4  Office of the Chief Information Officer Service Agency in conducting an investigation into emIn 2012, the Office of the Chief Information Officer (OCIO) ployee misconduct, the PSA would provide an investigawas part of the Ministry of Labour, Citizens’ Services and tor to assist the ministry in fact finding. That investigaOpen Government. Its mandate included development of tor would conduct interviews and review other relevant government-wide policies for responding to “information evidence through a human resources perspective. At the incidents” that “threaten information privacy or security.”117 conclusion of the investigation, the investigator would Information incidents were defined as events that threatprovide a report to an Employee Relations Specialist (also ened privacy or information security, including disclosure an employee of the Public Service Agency) who, after of information without authorization. Within this broader reviewing the report, would provide a disciplinary recomcategory, the OCIO also developed policy for responding mendation to the ministry. Disciplinary recommendations to privacy breaches, where personal information was colwould be based on the investigation report, the severity lected, stored, used, disclosed, accessed, disposed of or of the conduct, the individual’s employment history and stored in a way that was not authorized by the Freedom sometimes legal advice. of Information and Protection of Privacy Act. 4.8.3  Government Communications and Public Engagement In addition to developing a policy framework for responding to privacy breaches, the OCIO was responsible for Government Communications and Public Engagement investigating and responding to such breaches. All gov(GCPE) is the central agency responsible for all govern- ernment employees were required to immediately report ment communications matters. Staff of GCPE work with actual or suspected breaches to the OCIO. In turn, the ministry staff to develop communications messaging, draft OCIO would liaise with the independent Office of the Innews releases and information bulletins, respond to media formation and Privacy Commissioner as necessary.118 The policies developed by the OCIO set out step by step how requests and organize news conferences. to report and respond to privacy breaches. Each ministry of the provincial government has communications staff who are part of GCPE. The GCPE Dir- The OCIO included a unit that contained staff with exectors in each ministry report to GCPE Assistant Deputy pertise in managing privacy breaches. Employees in this Ministers and through them to the Deputy Minister of unit led government’s response to privacy breaches by GCPE, and also report regularly to the Deputy Minister providing breach management advice to ministries.119 and other executives within their client ministry. In 2012, the most senior GCPE employee within the Ministry of 4.8.5  Ministry of Justice, Legal Services Health was a Director of Communications. Reporting to Branch the Director were two Managers of Communications: one The Attorney General Act establishes the Attorney Genfocused on proactive communications and one focused on eral’s role as legal advisor to government.120 The lawyers issues management. Each of these managers had pub- within the Legal Services Branch of the Ministry of Justice lic affairs staff reporting to them. GCPE staff we spoke provide advice to the various ministries within governwith described a “collaborative approach” to developing ment. The branch is organized into a number of divisions, 117 Office of the Chief Information Officer, Ministry of Citizens’ Services, “Information Incident Management Process,” 29 April 2010, 5. 118 Office of the Chief Information Officer, Ministry of Citizens’ Services, “Information Incident Management Process,” 29 April 2010, 5. 119 Office of the Chief Information Officer, Ministry of Citizens’ Services, “Implementing Effective Recommendations Process,” undated. 120 Attorney General Act, R.S.B.C. 1996, c. 22. Section 2 of the Act sets out the duties and powers of the Attorney General. CHAPTER 4 and within the solicitors division, groups of lawyers with particular expertise serve particular client ministries. The following teams in the Legal Services Branch were involved in the matters we investigated: The Ministry of Health generally seeks legal advice from the lawyers in the Health and Social Services (HSS) group of the Legal Services Branch. Several lawyers from the HSS group were consulted at different times and to varying degrees during the ministry’s internal investigation. Throughout this report, we refer to these lawyers as the “health lawyer” or “HSS lawyer.” The ministry also sought the advice of a lawyer from the Constitutional and Administrative Law group who had expertise in privacy law. We refer to that individual as the “privacy lawyer.” The Public Service Agency generally seeks legal advice from solicitors in the Labour, Employment and Human Rights (LEHR) group of the Legal Services Branch. Within this group are lawyers with expertise in employment issues arising in a unionized and a non-unionized context. Lawyers from this group were also involved at varying times in the Ministry of Health’s investigation, and we refer to them as the “employment lawyers.” When the Office of the Comptroller General seeks legal advice from the Legal Services Branch, it does so through the lawyers in the Finance, Commercial and Transportation group. We refer to this lawyer as the “finance lawyer.” The Legal Services Branch charges client ministries for the time spent providing legal advice. This means that the branch recovers the cost of the lawyers’ salaries and other expenses from client ministries. 67 68 MISFIRE: THE 20l2 MINISTRY OF HEALTH EMPLUYMENT TERMINATIUNS AND RELATED MATTERS CHAPTER 5 5.0 / THE COMPLAINT 5 .0 / 5.1 Introduction In this chapter of the report, we describe the complaint that led to the Ministry of Health’s investigation into employees, contractors and external researchers. This account covers the period from March 21, 2012 until the end of May 2012. First, we set out the content of the complaint. Second, we describe the complainant’s work with the Ministry of Health and the evidence we received from her about her reasons for making the complaint to the Office of the Auditor General. Third, we describe the initial steps the Ministry of Health took to review the complaint. Because this section is not written in a strict chronology, we have provided a brief timeline of key events between March and May 2012: View main timeline Mar 21, 2012 Mar 29, 2012 MAr 30, 2012 Apr 11, 2012 Office of the Auditor General receives anonymous complaint alleging wrongdoing in the Ministry of Health. Manjit Sidhu, Assistant Deputy Minister of Financial and Corporate Services and Executive Financial Officer for Ministry of Health, receives a copy of the complaint from the Office of the Auditor General. Ministry of Health complaint reviewer begins gathering information. Mr. Sidhu asks reviewer to prepare a document to explain the wrongdoing. MAy 11, 2012 Early MAy 2012 MAy 2, 2012 Apr 25, 2012 Reviewer asks complainant to fact check DSEN summary. Reviewer and complainant meet to review documents and prepare Drug Safety and Effectiveness Network (DSEN) 1 summary. Reviewer and reviewer’s supervisor brief Mr. Sidhu. Reviewer meets with complainant and complainant’s direct supervisor. May 14, 2012 May 16, 2012 Reviewer briefs Mr. Sidhu on DSEN summary. Mr. Sidhu requests a summary of the issues relating to Alzheimer’s Drug Therapy Initiative (ADTI) 2. Document summarizing ADTI sent to Mr. Sidhu and Lindsay Kislock, Assistant Deputy Minister, Health Services Information Management and Information Technology, Ministry of Health. 1 DSEN was established by the Canadian Institutes of Health Research, in collaboration with Health Canada and other stakeholders, to increase evidence on drug safety and effectiveness available to the public and policy-makers, and to increase capacity to undertake research in Canada in this area. Source: Government of Canada, Canadian Institutes of Health Research, “Drug Safety and Effectiveness Network” . See Chapter 4 for a more detailed description of DSEN and B.C.’s role in the network. 2 See Chapter 12 and Chapter 4 for detailed descriptions of the ADTI project. 69 70 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS 5.2  The Complaint The catalyst for the Ministry of Health’s investigation was an anonymous, one-paragraph email complaint that the Office of the Auditor General received through its website complaint form on March 21, 2012. The complaint stated: The Ministry of Health has three staff members, Rebecca Warburton, Bill Warburton and Malcolm Maclure. All three also work at either UVic or UBC and are related to each other. The ministry has numerous agreements under which it pays these individuals to do research. In a number of instances the individuals are negotiating and even writing the agreement between the ministry and themselves or on behalf of one of the other two – their relatives. They are doing some $1 contracts, under which they do research work for the ministry and the ministry “pays” them in data (data and intellectual property rights are valuable). They are involved in some of the Therapeutic Initiative work out of the UBC Faculty of Medicine, with their friend Colin Dormoth [sic], a former ministry employee. [An] executive director at the ministry, says that she does not require TI to submit invoices for any of the work they do for the ministry, nor do they have deliverables. She says the ministry is just nice and regularly gives them money, trusting they are doing good work. To get around rules against direct awards they have, on paper, split up projects into multiple parts. For example, PEG [PharmacoEpidemiology working group] at UBC has been divided on paper into many projects and agreements. They have had UVic take money from the ministry and immediately transfer the money to UBC, saying that UVic is subcontracting UBC, to make it look like they were not doing another direct award. Some employees have raised concerns about this and been told to keep quiet because these individuals are friends with ADMs and DMs. CHAPTER 5 5.3  The Complainant’s History with the Ministry of Health The complaint was made anonymously.3 It was later confirmed that it was made by an employee in the Data Access, Research and Stewardship section of the Health Sector Information Management and Information Technology Division of the Ministry of Health. The complainant was one of the data stewards whose role we described in Chapter 4.4 The complainant told us that she was the sole author of the complaint. The complainant had been with the ministry since December 2010 in a position that supported the drafting and review of information sharing agreements. She had a legal background, but had no prior experience with the legislative framework under which ministry data was accessed or shared with researchers before beginning her employment with the ministry. The complainant was not working as a lawyer in her position with the Ministry of Health. Throughout her tenure with the Ministry of Health, the complainant voiced concerns about the need to safeguard the privacy of personal health information and restrict access to the administrative health data collected by the ministry. In her view, the legislation then in effect did not authorize the collection, use, or disclosure of personal information in the way that the Ministry of Health was doing at the time. As a result she believed several ministry employees and researchers were breaking the law. She was also concerned that personal information was being sent to the United States for research purposes contrary to the prohibitions against this established by legislation. The complainant was also concerned that researchers were taking advantage of the ministry by “giving themselves” intellectual property rights to which they were not entitled as part of the data contracting process. She also told us that she had concerns about whether researchers were able to use their data access to identify individuals, despite the fact that much of the administrative health information was supposed to be de-identified before researchers could access it. She expressed concerns that the ministry had insufficient controls in place to ensure it could protect individual privacy when the ministry’s data was used for research. Soon after beginning her employment with the ministry, the complainant began to raise what she believed were significant concerns about the release of administrative health data to external public bodies through the projects for which she was required to complete information sharWhen viewed as a whole, the content of the complainant’s ing agreements. In her interview with us, she said, “it internal emails, notes and her statements to us indicate became clear to me that every project I touched pretty that she believed there was widespread “misfeasance” much was a problem project.” During our investigation, in the ministry’s handling of health data, and she told us we reviewed hundreds of internal emails in which she she believed that many of her co-workers at the ministry, had detailed her concerns. including ministry executives, employees and external The complainant had raised questions about the ministry’s researchers, were engaged in wrongdoing. authority to release administrative health data to most, Although the complainant believed strongly in the validity if not all, of the projects on which she was working. She of her concerns, she had no prior experience with the focused on what she saw as a key difference between legislation or policies that guided access to administrative external research and internal evaluation. In her view, exhealth data, and no training or expertise in procurement, ternal projects were being improperly characterized as intellectual property issues or contracting. Further, when “evaluation” solely to facilitate data access. 3 As described in Chapter 2, individuals below the rank of Assistant Deputy Minister are not named in this report. There is an additional reason not to name the person who made the complaint. Public interest disclosure policy protects the identity of people who disclose allegations of wrongdoing. While there may be limited circumstances where such identity may be disclosed, it is generally contrary to good public interest disclosure practice. The question of whether the identity of a person who makes a public interest disclosure ought to be revealed does not generally depend on whether the underlying complaint had merit. 4 The complainant reported to the Director of Data Access, Research and Stewardship, who in turn reported to the Chief Data Steward and Executive Director of Strategic Policy, Information Management and Data Stewardship. Beginning in July 2011, the Assistant Deputy Minister responsible for the Health Sector Information Management and Information Technology Division was Lindsay Kislock. 71 72 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS she began her job in the ministry, she received no specific A former Chief Data Steward recalled that “she took a training to carry out her roles and responsibilities. As de- very strict read of the provisions” of the Freedom of Inscribed in Chapter 4, access to administrative health data formation and Protection of Privacy Act, and that they had is governed by a complex legislative framework and, by had discussions about how to interpret its provisions. This 2012, the ministry did not have clear policies or guidelines supervisor said that they had to remind the complainant on to help its employees apply that legislation. several occasions that although she had legal training, she When we asked the complainant how she had developed had not been hired to provide legal advice. He told us that her understanding of the programs in order to raise the she tended to return to an issue several times, and that: concerns she had, she confirmed that she had only intended to identify potential concerns based on a combination of information she obtained from speaking with co-workers, reading other people’s emails and reading select sections of contracts to which she had access. Despite having made efforts to obtain the relevant information, she told us she did not have specific evidence to support many of her concerns, nor did she know the history or context for the development of the projects she criticized. … we would finally say to her … you need to move from that … she was not being asked to sign off. She was being asked to make [an] assessment, provide information, and – at the end of the day give me a recommendation, or – or not. But at the end of the day, it was my decision. Before the complainant made her complaint to the Office of the Auditor General, the then-Acting Chief Data Steward and Executive Director of the Information Management and Knowledge Services (IMKS) Branch expressed Many of the complainant’s co-workers with more direct concerns about the amount of time the complainant and knowledge of the programs and the legislative framework some of her colleagues spent independently investigating (including legal counsel) had, at various times, attempted individuals who had submitted data access requests and to allay her concerns and respond to her questions. The questioning the value of the research being conducted. complainant remained sceptical of the answers she re- The Executive Director told us she thought these questions ceived. For example, she told us that when she raised were inappropriate and negatively impacted the data arconcerns: ea’s productivity in responding to requests. The Executive Director said she had tried to address this concern with … they would get very upset with me, they would her staff directly. bring [legal counsel] over and say, basically like, As we described in Chapter 4, there was pressure on the ‘explain to her why this is fine,’ and [legal counsel’s] explanation – like, we butted heads a fair ministry’s data stewards due to delays in data access. bit, and – because [legal counsel] never really These delays created tension between the ministry’s data convinced me it was fine. area and the program areas that needed data access to faAlthough the complainant did not have access to most of cilitate their various contracts and initiatives. Some of the the information that would have addressed her concerns, information sharing agreements that the data stewards she also identified areas where legitimate gaps existed in were working on had taken more than two years to comthe ministry’s practices. This led to some improvements plete. The complainant was often in communication with in the ministry’s processes. However, the majority of her staff in the Pharmaceutical Services Division, particularly concerns arose in areas about which she had minimal Dr. Rebecca Warburton, who was dealing with pressures knowledge or context. The complainant asserted that her from her own division to finalize data access. It was in this superiors were becoming increasingly angry at her for context that the complainant raised her concerns about bringing her concerns to light. For example, she told us data access and contracting. about an incident where another employee yelled at her for an hour in his office because he was getting “freaked out” that she was putting people’s jobs in jeopardy. CHAPTER 5 5.4  Rationale for Making the Complaint miss the substantive issues. When asked why she named specific individuals, she said: Because specifically I wanted those situations to be looked at, because whoever is making the decisions to allow that to all happen – like this is the problem situation, government people are somehow allowing all of this to happen, so somebody should probably look at this and make sure is this actually a problem? Because, like I kept saying, there could be stuff out there that somehow explains this and makes this fine … I might not know everything, I only get to see the bits, and people keep all sorts of stuff from me, so there might be something out there where this is totally okay. The complainant’s complaint to the Office of the Auditor General followed this sometimes tense relationship between the data stewards and program areas within the Ministry of Health. She told us that she submitted her complaint to the Office of the Auditor General because she did not know where else to go. She asserted that when she had complained to individuals at executive levels within the Ministry of Health and the Office of the Chief Information Officer at the Ministry of Technology, Innovation and Citizens’ Services, she had been “told just to shut up and go away.” She believed that Ministry of Health Assistant Deputy Ministers were dismissing her concerns. Through her work with the ministry, the complainant knew We reviewed with the complainant each of the statements that Dr. Malcolm Maclure and Dr. Rebecca Warburton made in her complaint to the Office of the Auditor General were employees of the Ministry of Health and that Dr. quoted in section 5.2. When the complainant reread the William Warburton had a contract with the ministry for complaint during our interview, she described that she one dollar. Except for these uncontroverted facts, she had wrote it at a time when she was “a little bit scared” of no direct knowledge of any of the other matters described things that she thought were going on in the ministry, in her complaint. The complainant confirmed in our interwhich is why she made the complaint anonymously. She view with us that she did not have any specific evidence said her main concern was “how to mention enough things of improper activities. to get people looking at the proper steps so somebody can actually look into this and make sure things are okay.” 5.5  Analysis of Complaint to Auditor General She expected that those within the ministry who had access to the facts would look into the matters outlined in her complaint and take appropriate action. Her main Once the ministry was alerted to the complaint it did preobjective was for the ministry to focus on the systemic liminary work about the issues she raised. However, the problems that she thought she had uncovered. She told us ministry never fully assessed the original complaint on she was bringing to light matters that someone else, with its merits. more knowledge, should follow up. That characterization, The following table, which we created based on our inhowever, is difficult to reconcile with the circumstances vestigation, shows that most of the assertions underlying that gave rise to the complaint. It is clear that in the weeks the complaint are incorrect. leading up to her complaint, the complainant had repeatedly expressed the view that government employees were both violating the law and threatening her for revealing those alleged violations. The complainant told us she decided to name specific individuals in her complaint so that the recipient of the complaint would not be focused at such a high level as to 73 74 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS TABLE A: ORIGINAL COMPLAINT DECONSTRUCTED Auditor General Complaint Analysis The Ministry of Health has three staff members, Rebecca Warburton, Bill Warburton and Malcolm Maclure. All three also work at either UVic or UBC and are related to each other. This statement is partially correct. The ministry has numerous agreements under which it pays these individuals to do research. This statement is factually incorrect. At the time the complaint was submitted Dr. R. Warburton and Dr. Maclure were each employed part-time as Co-Directors of Research and Evidence Development in the Pharmaceutical Services Division of the Ministry of Health and were also employed part-time at a university (Dr. Maclure by UBC and Dr. R. Warburton by UVic).5 Dr. W. Warburton was a contractor with the Primary Care Branch of the Medical Services and Health Human Resources Division of the Ministry of Health. He was not an employee of the Ministry of Health. Dr. R. Warburton and Dr. W. Warburton are married, and Dr. Maclure is Dr. W. Warburton’s second cousin. Apart from Dr. Maclure and Dr. R. Warburton’s employment agreements, the only other agreement between the ministry and any of these individuals was a contract between Dr. W. Warburton and the Primary Care Branch of the Medical Services and Health Human Resources Division of the Ministry of Health, for him to conduct research related to atypical antipsychotic drugs using Ministry of Health administrative health data. The ministry had no research or service agreements with its employees, Dr. R. Warburton and Dr. Maclure in which it paid them to do research. continued on next page 5 As described in Chapter 4, hiring academics who maintained their connections with universities was part of the plan of former Pharmaceutical Services Division Assistant Deputy Minister Bob Nakagawa supported by senior ministry leadership to create linkages between policy-makers in the Ministry of Health to improve the quality of decision making in the division. Mr. Nakagawa had featured Dr. Maclure’s and Dr. R. Warburton’s roles in his report to the Office of the Auditor General in 2009. CHAPTER 5 Auditor General Complaint Analysis In a number of instances the individuals are negotiating and even writing the agreement between the ministry and themselves or on behalf of one of the other two – their relatives. They are doing some $1 contracts, under which they do research work for the ministry and the ministry “pays” them in data (data and intellectual property rights are valuable). This statement is factually incorrect. Dr. Maclure was not involved in negotiating or writing Dr. W. Warburton’s agreement. With the knowledge of her employer, Dr. R. Warburton suggested to Dr. W. Warburton that he request new language in his contract that would allow him to publish his research, consistent with the intent of the parties. 6 That contract was approved after review by the Legal Services Branch and the new provision was part of a standard template used by government. Dr. R. Warburton was not, however, involved in negotiating or writing the agreement. Dr. W. Warburton’s agreement was with a separate division of the Ministry of Health from that in which Dr. R. Warburton was employed. Dr. W. Warburton was not paid “in data.” He obtained data access as part of his agreement with the ministry, as does any contractor where data access is a term of the contract and is needed to carry out the deliverables for the ministry. That was the case here. As described in Chapter 4, the Ministry of Health had a longstanding interest in having researchers publish their work – ideally in a peer-reviewed forum – as a way of supporting specific or general ministry goals.7 Researchers accessing data through a contract, including in some cases minimal cost contracts, supported this approach by the ministry. They are involved in some of the Therapeutic Initiative work out of the UBC Faculty of Medicine, with their friend Colin Dormoth [sic], a former ministry employee. This statement is mostly factually incorrect. Dr. Maclure or Dr. R. Warburton had some involvement with the Therapeutics Initiative (TI) as Co-Directors of Research and Evidence Development in PSD. This involvement was known to executives in the division. In these roles, they were not responsible for, or involved in, the data access supporting the TI contract. Neither Dr. Maclure nor Dr. R. Warburton worked for the TI in an advisory role or any other capacity. continued on next page 6 This incident is discussed in Chapter 9. 7 The ministry’s rationale for supporting such evidence-based approaches is described in Chapter 4. 75 76 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS Auditor General Complaint Analysis Dr. Maclure had participated as an unpaid co-investigator on grant proposals submitted by British Columbia researchers who wished to have his assistance on questions of methodology. In this capacity, he had been involved in grant proposals submitted by Dr. Colin Dormuth. He did not receive any income from any of the grants that Dr. Dormuth or other members of the TI obtained. Dr. W. Warburton had no involvement in the TI. Dr. Dormuth is a former ministry employee and professional associate of these three individuals. Dr. Dormuth is a faculty member at UBC and his position with the TI and the TI’s contract with the Ministry of Health were longstanding and independent of any involvement of Dr. Maclure and Dr. R. Warburton. The complainant had no knowledge of the nature of their relationships. [An] executive director at the ministry, says that she does not require TI to submit invoices for any of the work they do for the ministry, nor do they have deliverables. She says the ministry is just nice and regularly gives them money, trusting they are doing good work. This statement is incorrect in that it was taken out of context, attributed to the wrong person, and did not accurately reflect the ministry’s payment practices with the TI. A statement similar to this one was made to the executive director by an individual who worked in the Ministry of Health’s Finance Division in a 2012 email. This executive director had suggested that the ministry request an invoice from the TI. Until 2012, the ministry paid the TI quarterly, in accordance with the terms of the contract. The TI’s deliverables are clearly listed in its contract with the ministry. Evidence showed that the TI met these deliverables. Further, executives in PSD believed the TI’s work was valuable and used the work of the TI in making drug coverage and policy decisions. continued on next page CHAPTER 5 Auditor General Complaint Analysis To get around rules against direct awards they have, on paper, split up projects into multiple parts. For example, PEG at UBC has been divided on paper into many projects and agreements. They have had UVic take money from the ministry and immediately transfer the money to UBC, saying that UVic is subcontracting UBC, to make it look like they were not doing another direct award. This statement is factually incorrect. Some employees have raised concerns about this and been told to keep quiet because these individuals are friends with ADMs and DMs. It was correct to state that the complainant and some of her colleagues had raised concerns about PSD. However, we could not corroborate the complainant’s assertions that she or other employees were told to keep quiet. The project was not split up to get around rules governing direct awards. Rather, the nature of the project meant that there were multiple parts carried out by different entities. The contracts reflected these arrangements. At the time, government’s Core Policy and Procedures Manual, which sets out the rules for direct contract awards, allowed the ministry to issue contracts to universities directly because they were treated as other government organizations, irrespective of dollar amount. 8 This means that whether the projects were split or not is irrelevant to the question of whether a direct award was permitted. The complainant had no direct knowledge of the relationships between any of the people she mentioned in her complaint and executives in the Ministry of Health. During our investigation we did not identify any instances in which benefits were bestowed or improper conduct ignored by virtue of any relationship with senior executives. 5678 8 Ministry of Finance, “Section 6.3.3 Contract Award – all procurement,” Core Policy and Procedures Manual . 77 78 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS 5.6  The Ministry of Health Receives the Complaint Auditor General, Ms. McKnight said, “that it would be serious enough that they would feel that they needed to bring it to us … I thought it was very unusual.” On March 29, 2012, during a regularly scheduled meeting, a representative from the Office of the Auditor General 5.7  Initial Review of the Complaint provided a copy of the complaint to Manjit Sidhu, the The ministry responded to the complaint by taking immediMinistry of Health Assistant Deputy Minister for Finance ate steps to gather information about the individuals and and Corporate Services and Executive Financial Officer. agreements mentioned, and the allegations made. At the According to Mr. Sidhu, the Auditor General’s representoutset Mr. Sidhu wanted to understand the process the ative asked him to “do some checking into it and get back ministry had followed to establish the contracts described to them.” in the complaint. He was not concerned about the allegaMr. Sidhu told us it was infrequent, but not unheard of, tion about the one dollar contract, because he understood for anonymous complaints about financial issues to be such contracts were possible, but was more concerned brought to his attention. When they arose, complaints with the possibility that ministry employees had given could come from the Office of the Auditor General or be contracts to family and friends. raised through internal channels. In March 2012 Mr. Sidhu asked a junior auditor from his When Mr. Sidhu received the complaint, he was very busy division (we refer to her as “the reviewer” here) to “pull preparing for both the fiscal year-end financial work and the contracts and just try and gather some background for Budget Estimates and he did not, therefore, assess the and get back to us … and, you know, not to do too much details of the complaint himself. He told us that when he beyond that.” first read the complaint, it “wasn’t really clear … what The reviewer told us the first step she took was to “verify was going on here.” He knew, however, that he could some of the facts,” such as whether the individuals named not ignore it – particularly because it had come from the were indeed employees. Then she began to look into some Office of the Auditor General. of the contracts. To do this, she worked with a manager Mr. Sidhu informed Elaine McKnight, the Associate Dep- in the ministry who oversaw contract administration. She uty Minister of Health and his direct supervisor, about also conducted some corporate searches with the assistthe complaint. She told us, “it would be consistent for ance of a Legal Services Branch lawyer. Manjit to say, ‘we have a concern that’s been raised by In early April Mr. Sidhu asked the reviewer to put some the Auditor General.’ Given, you know, Manjit’s credibility, documents together to help him better understand the he would have said to me any kind of complaint you take complaint. The complainant learned about the reviewer’s seriously, to look at it.” She did not recall the allegations work indirectly through Ministry of Health employees who being a “really large, critical kind of thing” at the outset, were assisting the reviewer. At the time, the complainant and thought that Mr. Sidhu would have “tried to keep was continuing to raise her concerns with her supervisor [the review] as simple as you could.” She told us she was and others in her branch. On April 25, 2012, the reviewer surprised that there were complaints about contracts, met with the complainant and her direct supervisor. At this because so much work had been done with the Office meeting, the two presented the reviewer with a written of the Comptroller General on contract policies following statement outlining their concerns together with three the Danderfer case. supporting emails. This was the first time the reviewer However, Ms. McKnight also told us that, given that the met with the complainant. Office of the Auditor General had taken the time to proOn April 26, 2012, the complainant emailed the reviewvide the complaint to the ministry, “it’s something that er to ask for another meeting and provided her with a you have to respond to appropriately.” When asked what note summarizing an earlier meeting about the ministry’s it meant that the complaint came from the Office of the involvement with Drug Safety Effectiveness Network CHAPTER 5 (DSEN). This email contained additional information about the complainant’s concerns about contracting practices. Soon after her meeting with the reviewer, the complainant told the reviewer that she was the one who had made the complaint to the Auditor General. The reviewer told Mr. Sidhu about the complainant’s admission when they met in early May. Over the next several days, the complainant and a colleague who shared her concerns, gathered emails for the review. The complainant communicated frequently with the reviewer, both in person and through email, and presented the reviewer with a folder of documents to support her concerns. The reviewer worked with the complainant to review these documents, and to obtain further information on the contracts. As the reviewer described to us: [The complainant] and I start reviewing all of the documentation that she has … so [the complainant] would say, for example, you should look into this contract. So I would go to [the contract manager] and pull that contract. And then I would ask [the complainant], like, is this the right contract? Like, we were working together trying to figure out what was going on. amongst other allegations, accused a specific senior public servant of “misfeasance.” 2. The complainant’s April 3, 2012, “note to file” summarizing a meeting the complainant said she had with her supervisor and other staff about a research project. In this note the complainant suggested that certain individuals may be breaching the Criminal Code, the Financial Administration Act, Procurement Services Act and the Copyright Act. 3. An undated written summary by the complainant titled “Requirements of Government Contracts and Agreements”9 that stated, in part, that the ministry “has not complied with Conflict of Interest provisions on numerous and significant contracts … MoH did not comply with legislation and government policy on disclosure of potential Conflict of Interest in these instances.” The document also referred to the Danderfer case, which the complainant said had been brought to her attention by a co-worker: It may be tempting to dismiss these as relatively insignificant and technical, however we should recall a number of government officials, including some at the MoH, were investigated for their involvement in or knowledge with undisclosed Conflicts of Interests in the past. During her interview the reviewer told us that she was concerned about the wide scope and seriousness of the allegations brought to her by the complainant. She also told us that she felt overwhelmed by what the complain- This reference was followed by a summary that listed ant told her, and the documents she provided, in which responsibility of employees and contractors to report the complainant made serious allegations of widespread suspected fraud, and a statement that the ministry had misconduct within the Ministry of Health. The way in not complied with various pieces of legislation and that which the complainant presented the allegations made it “a number of contracts” are “vulnerable to allegations of appear as though she had uncovered a broad scandal with potential Conflicts of Interest.” The document also sumof impropriety on “large and high potentially criminal consequences. For example, some of marized 11 allegations 10 profile contracts.” the complainant’s allegations included: 1. The complainant’s November 11, 2011, “note to file” Assistant Deputy Minister Lindsay Kislock told us that summarizing a discussion the complainant said she around this time Mr. Sidhu told her about the complaint. had with her supervisor about the ADTI. It contained She told us she recalled attending a meeting in which she prejudicial language about certain individuals and, learned about some of the steps that were being taken “to try and kind of have [the complainant] articulate what she 9 The complainant enclosed this document in an email to her supervisor on April 19, 2012. In the covering email the complainant qualified the statements in her summary by explaining that she was not an expert and did not have complete information and so might be mistaken in her concerns. This covering email containing the cautionary statements was not provided to the reviewer. 10 When we asked the complainant about allegations contained in the summary, she told us that she had at the time no evidence to back up the allegations. She described the allegations in an offhanded way, as concerns that she thought should be looked into further. 79 80 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS thinks are the problems.” Ms. Kislock recalled that at the With significant assistance from the complainant, on May time the complainant’s acting supervisor was supporting 10, 2012, the reviewer created a draft “master” summary the complainant through this process. She also recalled document that contained summaries of emails the reviewlearning that the decision had been made to give the com- er obtained from the complainant – rather than a written plainant and her supervisor a week to 10 days to put down statement articulating the concerns alleged about the on paper what their issues were, but she recalled them DSEN initiative. The reviewer explained to us that when needing longer to complete the task. she created the document she summarized the information that she read in the emails, and categorized and inserted On May 2, 2012 Mr. Sidhu met with the reviewer and another employee so that he could be briefed about the headings as descriptors of the complaint. For example, the concerns. Mr. Sidhu told us that he believed this was first section of the draft “master” summary was titled “Unapproximately the time that he learned the identity of the authorized release of data/information.” The information complainant. He also learned that the complainant claimed under this heading included summaries of emails, provided to have previously raised her concerns internally and be- by the complainant, discussing concerns the complainant lieved she had not received an adequate response. Mr. had about the ministry’s data practices. The first email Sidhu asked the reviewer to work with the complainant referred to under this heading was a summary of the comto bring clarity to her concerns by preparing a document plainant’s own email which stated that she was “struggling to find the legal authority for MoH to collect/disclose illustrating an example, such as DSEN. personal data.” At the time, the reviewer had not been During the first week of May 2012, the reviewer spent asked to analyze the information the complainant provided. a significant amount of time reviewing documents with In fact, the reviewer had no substantive knowledge of the the complainant and one of the complainant’s colleagues legal framework to collect or disclose data, or whether to prepare the summary on DSEN to brief Mr. Sidhu. The the Ministry of Health had released data as part of the reviewer told us she relied primarily on the complainant DSEN initiative. because, as the reviewer put it, the complainant “knows” On May 11, 2012, the reviewer emailed the draft “master” and “I at this point don’t know.” summary document for DSEN to the complainant so that Throughout that month, the reviewer received numerous she could fact-check it. Three days later, on May 14, 2012, emails with attachments from the complainant about the reviewer briefed Mr. Sidhu on the DSEN summary DSEN. Some of these emails were not from the complain- document. This was followed by a larger meeting that ant’s own email but ones she had obtained from a mailbox afternoon, which included the complainant, her superof a colleague. The complainant was able to obtain these visor, the Acting Chief Data Steward and Mr. Sidhu. At emails because she had received prior permission from her this second meeting, the complainant and her supervisor supervisor to access one of her co-worker’s work email raised more concerns about other ministry initiatives, inaccount in order to do her work. Since the complainant cluding the Alzheimer’s Drug Therapy Initiative (ADTI). Still continued to have access to her co-worker’s email account lacking a clear picture of the complainant’s concerns, Mr. box she used it to search for documents relevant to DSEN Sidhu asked the complainant and her superiors to prepare for the purpose of the review. a written statement to clarify their concerns. The complainant also directed the reviewer’s requests Several people who attended the May 14 meeting defor which contracts she would need to gather from the scribed it as “heated.” Mr. Sidhu told us that the complainfinance division for review – a list that expanded over time. ant was upset the ministry was reviewing her allegations For example, in an email from the reviewer to another because she believed she alone knew what needed to be ministry employee on May 9, 2012, the reviewer asked, “… done to address them. Another person who attended the is it possible to compile a list of the 254 contracts so that meeting said that the complainant was clear “she was not [the complainant] can review them to decide which ones making allegations. She was bringing forward concerns need to be pulled?” This had the effect of expanding the about whether or not … the contracting and the financial scope of the review rather than clarifying the complaint. CHAPTER 5 structures were appropriate.” Mr. Sidhu said he told the complainant, “if there’s been some wrongdoing, we need to get to the bottom of it.” In an email later that month, Mr. Sidhu described the view of the complainant that the matter should be investigated by someone outside the ministry: I had my staff do some work on this, and we also met with staff from IM/IT to discuss some of the issues raised in the complaint document. Our purpose was not to do an audit, but to try and understand what wrong-doing (if any) was being alleged because this was not very clear from the complaint document. As part of this, we asked the staff in IM/IT (who incidentally, are likely the ones who authored the original complaint document to the OAG), to lay out for us a concrete example of where they believed some wrong-doing had occurred, and exactly what that wrong-doing was. The staff were very reluctant to provide this information as they felt quite strongly that this matter should only be looked into by someone from outside the Ministry, but in the end they agreed to comply. Following the May 14 meeting, the complainant and her superiors prepared a document called “Alzheimer’s Drug Therapy Initiative Chronology of Events” describing the various concerns about the ADTI held by some of the data stewards. We reviewed the document with the benefit of our knowledge of the ADTI that we gained through our investigation. We concluded that many of the concerns articulated in the document were based on mistakes of fact, including the mistaken belief that the DSEN initiative was part of ADTI and that Dr. Maclure was being paid as an external researcher to perform ADTI work.11 did not know whether many of the facts contained in the document were accurate. Although he did not receive any underlying evidence to support or contradict the allegations detailed in the ADTI chronology document, he believed that more investigative work was required. As he told us: … one thing was clear to me was that we needed to move forward with an in-depth review … Well, it was just the nature of the allegations, you know. I’d asked them to lay out specifically what they thought the wrongdoing was. And when I read that, you know, the relationships and the blurring of roles here, you know, it was clear that there was potential conflicts of interest and … people potentially benefiting from these conflicts of interest, you know. All these allegations of preferential treatment and so on … in my mind meant, you know, we need to do more work on this. At the end of May and following receipt of the DSEN “master” summary document and the ADTI Chronology of Events, Mr. Sidhu took steps to initiate a more formal investigation. He told us that he informed the deputy minister about the complaint and felt he also needed to involve the Assistant Deputy Ministers responsible for IMIT (Lindsay Kislock), and the Pharmaceutical Services Division (Barbara Walman) because the complainant and her group worked in the IMIT division and the details of the concerns he received fell under their respective divisions. This investigation is described in more detail in the following chapters. 5.8  Lack of Information from Program Areas After Mr. Sidhu received the ADTI chronology of events he met with the group and gave them feedback on the Prior to the creation of the terms of reference that led to format of the document. He did not comment on or chalthe ministry’s subsequent investigation, the initial comlenge the substance of their conclusions. Although he had plaint the ministry received from the Office of the Auditor some prior awareness of the purpose of the ADTI, his only General was never assessed on its merits. The reviewinvolvement with the program was tied to reviewing the er’s initial examination of the complaint relied heavily budget allocation on behalf of PharmaCare. He told us he on information provided by the complainant herself. The was not an expert about the ADTI project and as a result 11 Ministry of Health investigators, decision-makers and the Office of the Comptroller General’s Investigation and Forensic Unit often repeated this mistaken belief that Dr. Maclure was being paid as an external researcher to do ADTI work. 81 82 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS reviewer did not gather information from staff in the pro- information notes, planning documents and divisional gram areas of Pharmaceutical Services Division or Primary plans that explained how and why a particular initiative Care Branch of the Medical Services and Health Human was developed, approved by the executive management, Resources Division. Not gathering information from the and implemented. program areas proved to be a missed opportunity. Program Furthermore, the timing of the complaint to the Office of areas could have provided relevant factual and context- the Auditor General coincided with a significant turnover ual information that would have addressed the concerns of the senior leadership within the ministry. At the time raised in the complaint. This additional information would both the Assistant Deputy Minister of the Pharmaceuthave helped clarify the details of the complaints for Mr. ical Services Division and its Chief Data Steward were Sidhu, as he had initially hoped would occur. new to their roles, which meant the ministry had lost a The failure to engage with program area staff had addi- significant amount of its prior institutional knowledge tional consequences. At the time, the ministry did not have about the people, relationships, research initiatives and a centralized repository for its information regarding its the contracts identified in the initial complaint. The loss research initiatives and contracts. Instead, information of institutional knowledge was important because afpertaining to the ministry’s contracts and research initia- ter the complaint was received many of the new senior tives was filed across several different divisions within executives did not know how many of the relationships, the ministry depending on the nature of the information, research initiatives and contracts had been established, the type of contract and the responsibility for the initiative. nor did they appear to understand that much of this work For example, all service contracts were assigned to staff had been established deliberately under the aegis of a forwithin the ministry’s financial division for review. Con- malized structure implemented by the previous Assistant versely, the ministry’s records supporting the grants, or Deputy Minister of the Pharmaceutical Services Division, contribution agreements (including transfer under agree- Bob Nakagawa. ments), were held elsewhere. As a result, ministry finance Mr. Nakagawa had left the ministry at the end of March staff would have had some documents pertaining to Dr. 2012 after six years as the Assistant Deputy Minister. As W. Warburton’s one-dollar service contract, which the we discussed in Chapter 4, he developed and implemented complainant had flagged, but they would not necessarily a formal framework to incorporate the principles of evihave had documentation about the TI or the ADTI, which dence-based policy making into PSD’s drug policy developwere both funded by contribution agreements. ment and its drug listing decisions. One component of this The IMKS division, where the complainant worked, would structure relied heavily on using the ministry’s adminishave had access to some of the contract documentation, trative health data to support research and evaluation of but this documentation would have been incomplete be- both drug therapies and PSD’s own pharmaceutical policy cause that division was only provided with enough infor- initiatives to improve the ministry’s drug listing decision mation to facilitate their roles and responsibilities as data and policy development systems. During our interview Mr. stewards. At the time, this structure seemed to make Nakagawa told us that he believed his background as a sense because ministry staff responsible for vetting data pharmacist helped him bring a strong scientific perspective access and approving the data sharing agreements were to his leadership role at PSD. He told us that he based his not expected to offer opinions about the non-data related formal framework for PSD on his prior work in the hospital features of the ministry’s contracts, despite what many of setting where he had tried to leverage knowledge from the data stewards believed. Thus, the data group did not multiple sources to improve public health outcomes. One have full access to the large volume of additional informa- key aspect of his framework was its openness to enabling tion held by the program areas that was relevant to gain cross-appointments, or dual roles of employees also holda complete understanding of the particular contracts or ing academic or research positions, in situations where research initiatives in question. For example, the program such appointments were synergistic to the ministry’s goals area documents frequently included the briefing notes, of achieving improved public health outcomes. Within this CHAPTER 5 framework dual roles could be utilized when they were how the relationships, research initiatives and contracts perceived to benefit government by building bridges be- operated. tween researchers and ministry policy makers. Near the Those tasked with responding to the complaint did not beginning of his tenure, Mr. Nakagawa’s framework was bring those employees with subject matter knowledge outlined in a written policy proposal that described the into the review process. Mr. Sidhu told us he was conobjectives he believed his model could achieve. This model cerned about doing so in this situation where there were was formally approved by the Deputy Minister at the time. allegations of impropriety levelled against employees that During our investigation, we learned that the framework included allegations against the executive in the program Mr. Nakagawa created years earlier was, in 2012, unfamil- area. Moreover, because he had only asked the reviewer iar to some of the more recently appointed officials with- to conduct a brief review in order to clarify the scope of in the ministry. Moreover, some of its features, like the the complaint he did not expect the reviewer to conduct encouragement of cross-appointments were perceived a full analysis or to conduct interviews of program area as inappropriate for a public service setting. As a result, staff or the people named in the complaint. some of the recipients of the initial complaint became concerned when they learned that employees might be 5.9  Conclusion: Initial Review of occupying dual roles as researchers and employees or held employment in two different areas of the public Complaint service, as Dr. Maclure and Dr. R. Warburton did (within When the ministry received a copy of the complaint from the ministry and at a university). There was considerable the Office of the Auditor General on March 29, 2012, information contained in the ministry’s files documenting executives felt they needed to give it serious attention. that their dual roles had been expressly approved by the Between the end of March and the end of May 2012, ministry. Moreover the information about their role in under Mr. Sidhu’s direction the ministry tried to clarify the ministry’s approach to research initiatives was, as the complaint and the complainant’s additional concerns noted, not held in a place or in a form that made it readily in order to determine whether the complaint warranted available to the initial reviewer and the ministry’s senior further investigation. leadership. Had it been more available, or made widely known, this information would have addressed many of Ministry executives acted promptly in response to the the concerns raised in the initial complaint, and demon- complaint by immediately assigning an employee to strated the steps the ministry had taken to implement the review it and gather additional documents. During the contracts and research programs that formed the basis course of the review the ministry soon learned both the identity of the complainant and about her broader confor the complainant’s concerns. cerns. The ministry continued to treat the complainant Mr. Nakagawa’s departure from the ministry left PSD and her concerns seriously, in part, because some of the without a senior executive who had years of experience complainant’s colleagues also believed that wrongdoing in the pharmaceuticals services area, as well as an underwas occurring inside the ministry. At the same time the standing of the corporate history and strategic approach complainant’s supervisors supported attempts to clarify employed in the myriad programs the division had underthe scope of her concerns through the creation of written taken. Therefore, when these programs were questioned summaries that highlighted potential problems with two by the complainant, the PSD’s ability to defend or explain of the ministry’s research initiatives. In our view it was the programs was diminished at a pivotal time. However, an appropriate response for Mr. Sidhu to meet with the while the departure of Mr. Nakagawa was unfortunate complainant and provide her the opportunity to clarify in relation to the timing of the complaint, there remained the concerns in writing. It was also appropriate for him to experienced senior employees with in-depth knowledge of bring the complainant’s concerns to the attention of the its subject matter who could have filled in the knowledge other Assistant Deputy Ministers and the Deputy Minister gaps or directed the reviewer to the documents outlining because the complaints spanned multiple divisions within 83 84 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS the ministry and, if true, represented a serious potential problem. Both Mr. Sidhu and the reviewer were of the view that the purpose of the review was to bring clarity to the original However, there were problems with the steps the ministry complaint rather than to assess the validity or accuracy of took in reviewing the complaint. Through no fault of her the complaint. Significantly however, this was not clear to own, the reviewer was ill-equipped to deal with the scope others. It is therefore not surprising that when the initial of the issues brought forward by the complainant. By vir- review was completed, some believed that the original tue of assisting the reviewer in gathering supplemental complaint, together with the information that the reviewer information, the complainant became embedded in this gathered over the course of the two months, highlighted initial review phase. This had the effect of expanding rath- a potentially serious issue within the Ministry of Health. er than clarifying the complainant’s original allegations. Faced with an expanded set of concerns, the issue gained Due to the decentralized nature of record keeping and momentum and the ministry decided to initiate a more transition in the executive ranks in the ministry, important in-depth investigation. information was not included in the review. Findings F 1 The complainant had a sincere belief in relation to the allegations she made. The complainant was uninformed and her assertions were mostly wrong. F 2 The ministry’s decision to conduct an initial review of the complaint was appropriate. F 3 The complainant was deeply involved in and heavily influenced the initial review. F 4 The initial reviewer was overwhelmed by the task and ill-equipped to address the complex issues raised by the complainant. CHAPTER 6 6.0 / MINISTRY OF HEALTH INVESTIGATION: ESTABLISHMENT AND COMPOSITION 6.1 Introduction In this chapter of the report we describe the steps the Ministry of Health took at the end of May 2012 to establish an investigation team to examine the allegations in the complaint made to the Office of the Auditor General. We outline the intended purpose of the investigation, as set out in the team’s terms of reference, and describe the composition of the team. We describe the role of the lead investigator and her various reporting relationships over the course of the investigation. We then describe the roles and responsibilities of different team members throughout the entire investigation, from May 2012 to the fall of 2013. 85 86 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS View main timeline May 16, 2012 May 22, 2012 May 23, 2012 Manjit Sidhu, Assistant Deputy Minister of Finance and Corporate Services and Executive Financial Officer for Ministry of Health, contacts Comptroller General about complaint. Barbara Walman begins position as Assistant Deputy Minister of Pharmaceutical Services Division. Ministry of Health Deputy Minister Graham Whitmarsh and Ms. Walman learn of March 2012 complaint submitted to the Auditor General. Around Jun 6, 2012 May 31, 2012 May 24, 2012 Employee who worked with the lead investigator on the Timely Access report joins investigation team. Ms. Kislock and Ms. Walman approve terms of reference for the Ministry of Health investigation team. Mr. Sidhu approves terms of reference later. Lindsay Kislock, Assistant Deputy Minister of Health Sector Information Management and Information Technology, asks the Director of Privacy Investigations for Office of the Chief Information Officer about her availability to lead an investigation. Around Jun 21, 2012 Jul 2, 2012 Jul 13, 2012 Public Service Agency investigator joins the investigation team. The lead investigator wins competition for position of Chief Data Steward and Executive Director, Information Management and Knowledge Services, but does not assume this new role. The initial reviewer leaves investigation team. Oct 9, 2012 end of Aug 2012 Aug 22, 2012 Mr. Whitmarsh writes to Office of the Chief Information Officer to confirm arrangements about the lead investigator’s reporting relationship. Three additional members join investigation team. Mr. Whitmarsh confirms the plan to have the lead investigator report to the Office of the Chief Information Officer. Mar 2013 Five contract employees begin working for investigation team from New Westminster. 6.2  From Review to Investigation Mar & Apr 2013 Project manager, analyst and administrative assistant join investigation team to help manage records and respond to freedom of information requests. Oct 2013 Ministry of Health investigation ends. 23, 2012 with an email to the Comptroller General that attached the Alzheimer’s Drug Therapy Initiative (ADTI) summary document. In May 2012, Manjit Sidhu, Assistant Deputy Minister, Finance and Corporate Services, and Executive Finan- Also on May 23, 2012, Mr. Sidhu emailed Deputy Minister cial Officer for the Ministry of Health, contacted several of Health Graham Whitmarsh to alert him to the allegapeople about the complaint and the work that the initial tions. A copy of the complaint to the Auditor General as reviewer was doing. well as the ADTI summary were attached to the email. Mr. On May 16, 2012, Mr. Sidhu contacted the Comptroller Whitmarsh recalled that he challenged Mr. Sidhu about General because he believed the Office of the Comptrol- how allegations like these could have arisen in the minler General had the expertise to deal with the financial istry again in light of the contracting practices review comcomponent of the allegations. He followed up on May pleted in the Ministry of Health after the Danderfer case. CHAPTER 6 During our investigation, we learned that the post-Dan- By the end of May 2012, Lindsay Kislock, Assistant Depderfer review did not include Pharmaceutical Services uty Minister of Health Sector Information Management Division (PSD) contracts or the types of grants that were and Information Technology, Mr. Sidhu and Ms. Walman encompassed in the new allegations. Mr. Sidhu did not agreed to initiate a broader investigation into the matters recall this discussion with Mr. Whitmarsh. the complaint raised. When we spoke with Mr. Sidhu, he In his May 23, 2012 email to Mr. Whitmarsh, Mr. Sidhu said that although he was confused about the extent of suggested that the Office of the Comptroller General’s the concerns after he had reviewed the initial complaint, Internal Audit could look into the matter further, “not he thought the nature of the allegations, particularly the because we have any evidence of serious wrongdoing, issues around conflict of interest, required further invesbut because there are some issues that warrant further tigation. As Mr. Sidhu told us: So once I’d got that document [the ADTI review], investigation and [the Office of the Auditor General] will I looked at it, and, again, you know, it wasn’t ablikely insist on this anyway.” Mr. Whitmarsh directed Mr. Sidhu to brief Barbara Walman, Assistant Deputy Minissolutely clear again to me because, you know, I’m ter of the Pharmaceutical Services Division, and to ask not an expert on this. But one thing was clear to the Office of the Comptroller General to assist, “but with me was that we needed to move forward with an in-depth review. timelines to allow us to react and make decisions as and when they have information.” Thereafter, Mr. Whitmarsh When asked why he felt this was the case, he said: did not have direct involvement in the investigation until … well, it was just the nature of the allegations, he began conducting weekly meetings in August 2012 you know. I’d asked them to lay out specifically with the investigation team and others. what they thought wrongdoing was. And when Ms. Walman began her job as Assistant Deputy Minister I read that, you know, the relationships and the of the Pharmaceutical Services Division on May 22, 2012, blurring of roles here, you know, it was clear that and learned about the complaint the next day. Ms. Walthere was potential conflicts of interest and poman did not have a background in pharmaceuticals or with tential – people potentially benefitting from those the Ministry of Health. Because she learned about the conflicts of interest, you know. All these allegacomplaint almost immediately after assuming her new role, tions of preferential treatment and so on, I think she had a very limited opportunity to familiarize herself they all, you know, in my mind meant, you know, with the work of her division before hearing the comwe need to do more work on this. plaints made about her staff. Ms. Walman told us that she did not speak with her predecessor, Bob Nakagawa, Mr. Sidhu told us he wanted the additional work done to get his perspective about how he viewed the Assistant quickly – by June 30, 2012. Due to what he described as Deputy Minister role at PSD, or to ask him about PSD pro- “implied pressure” from the complainant, he felt that the grams and contracts that were under investigation. She ministry had to demonstrate that it was doing something told us that to do so could raise privacy concerns since and that “this was going to be looked into.” Mr. Nakagawa was no longer employed by the provincial On May 24, 2012 Ms. Kislock asked the Director of Privacy government. As a result, she was put in an unenviable Investigations at the Office of the Chief Information Officer position when advised of the complaint on her second day – who was conducting the Timely Access review, and was of work at PSD as she had not yet had the opportunity to being considered for a position at the ministry – about her gain complete knowledge about the programs within her availability to begin working on an investigation into the division or about the roles of the employees identified in allegations. She agreed to participate and, on May 29, 2012, presented her first draft of the terms of reference the initial complaint. for the investigation to Ms. Kislock, Ms. Walman and Mr. Sidhu.1 1 As we describe below, we refer to this individual as the lead investigator. 87 88 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS By May 31, 2012 the terms of reference had been finalized and signed off by Ms. Kislock and Ms. Walman.2 6.3  Purpose of Investigation In the terms of reference, the lead investigator described the allegations to be investigated as follows: … inappropriate procurement, contracting irregularities and research grant practices, in the Research and Evidence Development section of the Pharmaceutical Services Division, MOH. In addition, concerns were also alleged regarding inappropriate data access arrangements, intellectual property infringement, and code of conduct conflicts with employee contractor relationships, including preferential treatment. and, as a result, they looked at areas of the ministry that were outside the investigation team’s approved terms of reference. Consistent with Mr. Sidhu’s wish to have the review completed quickly, the terms of reference set a target date of June 30 for the team’s report to be finalized. Although the March 2012 complaint was the catalyst for this investigation, by the time the terms of reference were finalized, the investigation was no longer just about responding to the allegations in that complaint. Due primarily to the significant influence that the complainant exerted in the initial review process up to that point, the focus of the investigation team had expanded significantly. As a result, the investigation team did not return to the claims made in the initial complaint to assess whether they were valid and substantiated. The objectives of the review were to “provide all findings The terms of reference were not later modified to reflect and facts relating to allegations being reviewed,” and to the expanded scope of the investigation that we describe “identify opportunities to improve government and minis- in the remainder of our report. The lead investigator told tries information contracting, granting, research and data us that this was because the investigation was not comaccess practices in the Research and Evidence Develop- pleted and no final report was prepared. ment section of PSD, MOH.”3 The wording of the terms of reference suggested that the review would focus primarily on practice improvements from a systemic perspective. At the same time, the background section of the terms of reference refered to the allegations in the original complaint. One of the objectives of the review was to conduct a “review of roles, responsibilities and relationships of 3 employees and 2 contractors that primarily support and [are] involved in the majority of research and evaluation work in the Research and Evidence Development Section, PSD, MOH.”4 6.4  Ministry of Health Investigation Team Members The composition of the investigation team varied over the course of the investigation. During the first phases of the investigation until the first firings in September 2012, the team had a core group of investigators with different levels of investigative experience. The team would eventually consist of members from the Ministry of Health, the Public Service Agency (PSA) and the Office of the Chief In addition, although “matters pertaining to other busi- Information Officer (OCIO). There were, at that time, no ness areas of PSD, MOH” were ostensibly “out of scope,” guidelines or policies for multi-ministry investigations to in fact, the investigation did include other parts of the inform the team’s approach to its work. There is now a ministry. Some of the employees who were eventually protocol for coordinating such investigations. dismissed worked for other divisions of the Ministry of On the whole, the evidence we received demonstrated Health. The lead investigator told us that the team was that the people assigned to the investigation team and concerned with the protection of personal information 2 Mr. Sidhu’s signature on the terms of reference is dated July 27, 2012. 3 “Review Involving the Ministry of Health Pharmaceuticals Division, Research and Evidence Development Section: Terms of Reference, v.2,” 31 May 2012, 4. 4 ”Review Involving the Ministry of Health Pharmaceuticals Division, Research and Evidence Development Section: Terms of Reference, v.2,” 31 May 2012, 4. CHAPTER 6 those who assisted them believed the work they were do- and passionate about her work. Her former supervisor at ing was important, valuable and necessary. Many worked the OCIO made this comment to us about her approach to long hours under significant pressure to meet the goals privacy investigations: that had been set for them. Although we are critical of Your and my classification of something that various aspects of the investigation in this report, it is would be minor would be different than her clasimportant to recognize that members of the investigation sification of something that would be minor … team were – and many still are – hard-working and dediShe definitely took the protection of private inforcated public servants. mation very seriously. 6.4.1  Lead Investigator Team members told us that they deferred to the lead Although the individual who drafted the terms of refer- investigator’s expertise in privacy matters and to her ence described herself in that document as the “team views about the allegations relating to data and privacy lead,” she told us that she was only in charge of inves- breaches. tigating issues related to data access and privacy, and 6.4.1.2  Reporting Relationships another team member was in charge of examining the Based on the evidence we reviewed, the precise oversight contract issues. In our view, her statements on this point the three sponsoring Assistant Deputy Ministers played, were not supported by the documents we reviewed or by as a group, was unclear. According to the project timeline evidence from other witnesses. The other investigation contained in the initial May 2012 Terms of Reference the team members told us that the team worked hard on a formal review of the allegations was initially intended complex and stressful investigation. to last only one month – the Terms of Reference did not We heard similar evidence confirming the team lead’s contain any specific provisions detailing how the lead instatus as the lead investigator from many individuals we vestigator was supposed to provide updates to the three spoke with who interacted with her during the investiga- sponsoring Assistant Deputy Ministers. Mr. Sidhu told us tion. For example, one of the Assistant Deputy Ministers that he could not specifically recall whether the Assistant who sponsored the investigation understood that the team Deputy Ministers ever met with the investigation team lead’s role was to “get to the bottom of” all of the alleg- as a group. ations – whether they were related to financial, data or Rather than providing any collective oversight, the three contracting matters. To describe her as merely conducting Assistant Deputy Ministers received periodic updates a “data investigation” does not appropriately capture her individually. For example, Mr. Sidhu also told us that he role. As a result, we refer to the team lead as the lead received periodic updates from the contract specialist investigator throughout this report. and was aware that the lead investigator also provided individual updates to the other two Assistant Deputy Min6.4.1.1 Background Prior to being awarded the job of Executive Director of isters. However, from his perspective the Assistant Deputy Information Management and Knowledge Services at Ministers for the most part wanted to let the investigation the Ministry of Health in July 2012, the lead investigator team “do their work, see where they got to, and at least was the Director of Privacy Investigations at the OCIO, get to a draft report and then move forward from there.” a division within the then-Ministry of Labour, Citizens’ Throughout her work on the investigation – beginning in Services and Open Government. She oversaw all privacy May 2012 and ending in November 2013 – the lead ininvestigations conducted by that office and was the lead vestigator’s role and reporting relationships were unclear. investigator assigned to some of the investigations; it When she began the investigation, the lead investigator was her background in conducting privacy investigations was still the Director of Privacy Investigations with the that led the Ministry of Health to consider her for this OCIO. In the terms of reference, she is described as being investigation. Several past colleagues and supervisors from the OCIO. At the same time, some members of the have described the lead investigator as hard-working investigation team believed they reported through the 89 90 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS lead investigator to the three Assistant Deputy Ministers of Health listed in the terms of reference as sponsors of the investigation. Columbia, confirmed that the lead investigator did not report to him in any way with respect to the Ministry of Health investigation. Within the Ministry of Health, Ms. On July 2, 2012, the lead investigator won a competition Kislock had announced that the lead investigator would for the position of Chief Data Steward in the Ministry assume her role as the new Chief Data Steward in July of Health, reporting to Ms. Kislock. Although, she never 2012. Although she did not officially assume this role, the officially assumed this role, as described below, she exer- September 2012 draft of the Timely Access report that cised some of the responsibilities associated with the the lead investigator wrote stated that it was prepared position. On July 16, Ms. Kislock sent an official announce- by the “Executive Director and Chief Data Steward” in ment to staff welcoming the lead investigator as the new the Ministry of Health. Moreover, she was identified as Executive Director of the Information Management and the Chief Data Steward for the ministry to both internal Knowledge Services Branch and Chief Data Steward. The and external individuals, and was involved in the branch’s email stated that she would work part-time in that pos- strategic planning, approved data access requests on beition over the following two weeks while she completed half of the ministry and performed other Executive Director assignments for the OCIO and would occupy the position tasks. Mr. Whitmarsh wrote again to the OCIO on October full-time on July 30, 2012. However, as the weeks passed 9, 2012, confirming that the lead investigator would conand the investigation continued, the lead investigator did tinue to report directly to that office until the investigation was completed. not fully transition into her new role. Throughout August 2012, the lead investigator reported Throughout the investigation, the lead investigator idenon the progress of the investigation to Mr. Whitmarsh. tified herself to interviewees as a Director of Privacy InAccording to our interview with the lead investigator, vestigations at the OCIO. Further, the Ministry of Health’s during this time she also reported on the progress of the press releases and other public communications referred investigation to Ms. Kislock and Ms. Walman on a more to the investigation as an OCIO investigation. Despite these statements, the lead investigator did not report to frequent basis. anyone at the OCIO. In mid-August 2012, Mr. Whitmarsh asked Ms. Kislock to arrange to have the lead investigator transferred back In March 2013, the ministry created a new investigative to the OCIO temporarily in an effort to maintain the in- position for the lead investigator in Ms. Walman’s division dependence of the investigation from the ministry. Ms. so that the lead investigator could continue her investiKislock and Mr. Whitmarsh confirmed these arrangements gation of data issues from outside Ms. Kislock’s division. At this point, she still expected to move to the Chief Data in writing to the OCIO. Steward position at the Ministry of Health when the inMr. Whitmarsh told us that from his perspective, it was vestigation was completed. important to have the lead investigator reporting to the OCIO “because then she has an accountability that’s not The ministry’s decision to seek the transfer of the lead with us.” He described how he had intended to keep both investigator back to the OCIO was well intentioned, but the lead investigator and the PSA investigator (who joined beyond a correspondence exchange, neither the ministry the team on June 21, 2012) “outside of the ministry so nor the OCIO took substantive measures to ensure that the that they had independent reporting.” He saw the lead lead investigator carried out the investigation independent investigator as an expert from the OCIO who had been of the ministry. The uncertain status of her employment brought in “to figure out how bad” each of the alleged did not in itself make it unreasonable for her to carry out this review. However, it was unreasonable for the ministry activities was. to represent the investigation as “independent” of the However, the lead investigator was never actually trans- ministry when in substance it was not. The result of this ferred back to the OCIO in an official or unofficial capacity. lack of clarity was that the government represented the Dave Nikolejsin, then-Chief Information Officer for British investigation as being conducted at arm’s length when, in CHAPTER 6 fact, there was no clear accountability to anyone outside the Ministry of Health who could assess the investigation independently. Significantly, in the absence of clear lines of reporting, no one was effectively supervising or monitoring the lead investigator as she conducted the investigation. While senior leadership of the Ministry of Health received her updates and reports on the investigation, none of these executives believed they were clearly responsible for evaluating the quality of her work or the way in which she carried it out. When we asked about the lead investigator’s ability as an investigator, Mr. Whitmarsh said, “I don’t know [her] background but she was able to articulate a level of knowledge … [but] I didn’t sort of go through and assess [her].” Mr. Whitmarsh noted that she was already well into the investigation by the time he became involved. Based on Mr. Whitmarsh’s correspondence with the OCIO and his evidence to us, it is clear Mr. Whitmarsh thought that the lead investigator was the responsibility of a different ministry. However, Mr. Nikolejsin disclaimed any role in supervising or evaluating her work. Although we saw some evidence that the lead investigator sometimes described herself as an OCIO employee while the investigation was underway, she told us that she did not report to the OCIO and that she was uncomfortable identifying herself as investigating on behalf of the OCIO because that description was wrong. No one in a position to supervise the lead investigator was critically assessing the work she was doing. The absence of anyone in government taking responsibility for supervising the lead investigator removed an important check on her work. space in the Ministry of Health building with other ministry employees. Employees we spoke with in Information Management and Knowledge Services viewed this arrangement as inappropriate because it created an impression that certain Ministry of Health investigation team members were investigating colleagues. One employee described that “it was pretty hard to work each day when you’ve got your own staff investigating you. They’re not telling you what they’re working on or you know they can’t really say anything.” This co-location created feelings of distrust, resentment and discomfort among some staff. Moreover, the branch was already short-staffed so had little capacity to provide resources to the investigation even on a limited or ad hoc basis.5 6.4.3  Other Team Members The terms of reference stated that the team would include the lead investigator and two representatives from the Ministry of Health’s Financial and Corporate Services Division, and, as required, representatives from the forensic investigations unit of the OCIO and the investigations unit of the PSA. The individual who had conducted the initial review in April and May 2012, at Mr. Sidhu’s request, was also part of the team for the first few weeks until July 13, 2012. On June 21, 2012, the investigation team asked the PSA for assistance in dealing with the human resources issues that it believed had come up during the investigation. The PSA quickly assigned an investigator and an Employee Relations Specialist to the matter. As we will describe in this report, the Employee Relations Specialist appro6.4.2  Location of the Ministry of Health priately did not directly participate in the investigative Victoria Investigation Team work. At the time, the PSA’s investigations unit had only For part of the investigation, the lead investigator used the been operating for approximately one year. When the PSA Chief Data Steward’s office in the Information Manage- became involved in this investigation, it had not yet dement and Knowledge Services Division and sought the veloped any formal policies or procedures for conducting assistance of people from that branch in the investigation. human resources investigations. The PSA investigator asBetween approximately September 2012 and April 2013, signed to the Ministry of Health team had about one year when additional members were added to the investiga- of experience in that role and received limited training tion team, some of the investigators shared the same prior to her assignment to the investigation. Despite the increasing size and complexity of the investigation, the 5 For staffing challenges pertaining to data access, see Chapter 4. 91 92 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS PSA investigator continued to carry a full caseload of other matters during the course of the investigation. We also learned that she had limited exposure to the Ministry of Health beforehand and did not understand the programs or issues she was tasked to look at. She candidly told us that she felt she was in over her head and said this caused her to be in a subordinate position during the investigation. 2012 other tasks were assigned to him by the lead investigator, including developing drafts of the Internal Review report and creating a document known as the Relationship Web. In June and July 2012, his work also consisted of reviewing people’s email histories and cataloguing the emails in spreadsheet format. The Employee Relations Specialist had only occupied her role for about three months and was still in a probationary period. Like the PSA investigator, the specialist received no training prior to this investigation and the PSA had not yet developed any investigative policies that would have informed her role within the wider investigation team at that time. At the end of August 2012, another investigator was added to the team to review emails. In addition, a privacy investigator from the OCIO and an administrative assistant also joined the team. These three team members all worked in Victoria. Between the fall of 2012 and the fall of 2013, the lead investigator also brought in additional team members to assist the investigation by reviewing emails and supporting the creation of the storyboards.6 In July 2012, a Strategic HR Manager from the Ministry of Health also joined the investigation team. He had worked at the ministry since 2010 and in that role was principally involved in policy and planning issues. He was clear with us that he was not a trained human resources investigator. In March and April 2013, a project manager, administrative assistant and an analyst were added to the team to help organize the large volume of emails and documents the team compiled, and to help respond to mounting freedom of information requests. Thus, at this stage, the core of the investigation team who conducted the investigative work and interviews from this point until the terminations consisted of: In October 2013, the Ministry of Health ended its investigation by which time most of the employees on the investigation team had returned to their regular duties. Team Lead (the lead investigator) Investigator, Public Service Agency Contracts specialist, Financial and Corporate Services, Ministry of Health Strategic Human Resources Manager, Ministry of Health 6.5  Conclusion: Investigation Team Structure and Reporting Relationship The ministry investigation began by assembling a multi-disciplinary team under the direction of the lead In addition to the core investigation members of the investigator once the terms of reference were finalized. team, an employee who had assisted the lead investigaOther than the lead investigator, the team did not have tor with the earlier Timely Access report also joined the significant prior experience conducting investigations team. He worked out of an office in New Westminster of this type. Although it is clear that the team members and described his role on the team as “an aggregator of worked very hard to conduct the investigation, the team data.” He did not participate in the interviews the team lacked the structure and policy guidance that would have conducted. He also told us that when he initially joined assisted its work. In our view, this lack of structure was the team, the lead investigator assigned him a lot of disone of the factors that hindered the team’s ability to fully crete one-off tasks, which included looking at “research and accurately assess the information it gathered as the articles” to find out “are these people publishing?” As we investigation unfolded. It also led to the many procedural describe later in this report, throughout the summer of 6 “Storyboards” was the name given to a set of litigation support documents that described the allegations against the fired employees, and other information necessary for government’s defence of the grievances filed by the terminated bargaining unit employees and the wrongful dismissal lawsuits that had been started by the excluded employees. CHAPTER 6 problems with the manner in which the interviews were conducted.7 effectively supervising the lead investigator or the team, or assessing the quality of their work once the investigation was underway. It was also apparent that uncertainty existed within the ministry about how the reporting relationships were sup- As we will discuss later in this report, the absence of posed to function. As noted, we received conflicting evi- effective oversight fostered an environment in which the dence about whether the lead investigator was supposed investigation was allowed to expand well beyond the to report to the Ministry of Health or the OCIO throughout scope initially described in the terms of reference. While the investigation. For her part, the lead investigator also scope changes in an investigation can and do occur, in demonstrated this uncertainty when she told us that she this case, there was no effective oversight or approval felt uncomfortable indicating that she was investigating of such changes. Without effective oversight, the focus for the OCIO, while also representing to others, as she of the investigation team expanded as the team pursued conducted the investigation, that she was the OCIO’s various allegations and theories of wrongdoing. investigator. Stephen Brown told us that shortly after he became the Similarly, both Mr. Whitmarsh and Mr. Nikolejsin indi- Deputy Minister of Health, in June 2013, he became very cated that the lead investigator did not report to them. concerned about the lack of oversight of the investigation Whatever the formal state of the reporting relationships and the resulting lack of focus. 8 By October 2013, the at the time, from a functional perspective, nobody was investigation was discontinued. Findings F 5 T he planning of the investigation and composition of the Ministry of Health investigation team was procedurally flawed, and therefore improper, in that: a. T he terms of reference for the Ministry of Health investigation did not clearly define its scope. b. T he team lacked effective oversight, and it acted without appropriate policy direction and guidance in the conduct of the investigation. c. T he team included members who were not sufficiently trained for an investigation of this complexity. d. T he investigation was not conducted independently from the Ministry of Health despite being represented as being led on behalf of Office of the Chief Information Officer. F 6 S ituating the investigation amongst employees in the Ministry of Health building was unnecessary and wrong. 7 We describe the problems with how the interviews were conducted later in this report, as did Marcia McNeil in her report, which we describe in Chapter 16. 8 We describe Dr. Brown’s concerns in Chapter 13. 93 94 MISFIRE: THE 20l2 MINISTRY OF HEALTH EMPLUYMENT TERMINATIUNS AND RELATED MATTERS CHAPTER 7 7.0 / MINISTRY OF HEALTH INVESTIGATION THROUGH THE FIRST EMPLOYMENT SUSPENSIONS: JUNE AND JULY 2012 7.1 Introduction In this chapter of the report, we describe the first steps taken by the Ministry of Health after its investigation team’s terms of reference were finalized on May 31, 2012. During this stage, the team consisted of the lead investigator, the Public Service Agency (PSA) investigator (who joined on June 21, 2012), the contracts specialist, and the strategic human resources manager. This core team was assisted by the initial reviewer until July 13, 2012, as well as the employee in New Westminster who described his function as aggregating data. This chapter covers a time frame from June 1 to approximately the end of July 2012, and focuses on four key developments in the investigation during this period. First, the Ministry of Health decided to suspend data access for three employees and two external contractors. Second, the investigation team began to gather evidence through reviewing contracts and emails, and by conducting some initial interviews. Third, the investigation team completed the first two drafts of its Internal Review report. Fourth, the Ministry of Health suspended the employment of three employees, one of whom later asserted that his suspension amounted to a constructive dismissal. 95 96 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS View main timeline Jul 6, 2012 Jun 7, 2012 Jun 12, 2012 Jun 22, 2012 Data access and signing authority suspended for Dr. Malcolm Maclure, Dr. Rebecca Warburton and Ron Mattson. Data access suspended for Dr. Colin Dormuth. Investigation team begins conducting its initial round of interviews. Investigation team meets with Investigation and Forensics Unit of the Office of the Comptroller General. Jul 18, 2012 Investigation team completes second draft of Internal Review report. Jul 17, 2012 Dr. Maclure, Dr. R. Warburton and Mr. Mattson dismissed. Later, Dr. Maclure takes position he has been constructively dismissed. Investigation team completes first draft of Internal Review report. Jul 13, 2012 Lead investigator contacts the Office of the Information and Privacy Commissioner to notify of investigation and possible data breach. A data breach means that the collection, use, disclosure, access, disposal or storage of personal information (in this case data), whether accidental or deliberate, was not authorized by the Freedom of Information and Protection There were no investigative plans or other types of plan- of Privacy Act. The investigators discovered the three data ning documents directing the review. We found no docu- breaches detailed in the Office of the Information and mentary record that broke down the matters under review Privacy Commissioner report after the data suspensions into its specific issues. Instead, the ministry employees were imposed, while reviewing emails. None of the data commenced the review without narrowing the issues or breaches they discovered were related to allegations mapping out the direction of the investigation. Considering raised by the complainant. the expansive scope of the terms of reference, we found The background to the investigation team’s Terms of that the lack of an investigative plan contributed to the Reference reflected the additional concerns that the investigation growing well beyond a manageable scope. complaint raised “regarding inappropriate data access arrangements.” The Terms of Reference did not identify 7.3  Data Suspensions any suspected data breaches for investigation. The ministry had not otherwise articulated that there were any One of the first steps that the ministry took in June once it specific suspected data breaches with respect to any of commenced its formal investigation was to suspend data the individuals who had their data access suspended in access to several individuals, which we describe in some June 2012. Instead, the decisions to suspend data access detail in the next subsection. were a response to the broad allegations of potential data While there was no specific allegation of a data breach misuse in relation to those named in the Auditor General in the initial complaint to the Auditor General, the com- complaint. plainant had provided additional information during the Placing the data access suspension decisions in their initial review period showing that she and others in her context, in 2012 the ministry lacked proper policies, probranch were generally concerned that individuals might be cedures and documentation in relation to data access and inappropriately accessing and using data, including potenuse. This understandably contributed to an overriding contially selling or transferring data outside the jurisdiction. cern that data was vulnerable to improper disclosure. In 7.2  Commencement of Internal Review CHAPTER 7 addition, the investigators and decision-makers in this they did not have data access. Another individual, with case lacked knowledge of the factual underpinnings of data access, was concerned because the letter did not many of the relevant ministry projects and the data access articulate the basis for the data suspensions and despite arrangements in relation to individuals and the ministry’s his request for information, the ministry did not follow-up projects. Without this knowledge, but sensitive to the vul- with such details.1 nerabilities of data security and the importance of privacy, We asked the decision-makers about their rationale for the ministry adopted a restrictive response to the broad suspending data access. concerns about data by suspending the data access for Lindsay Kislock told us that, as the Assistant Deputy Minthese employees and contractors. ister for the Health Sector Information Management and Information Technology Division of the Ministry of Health, 7.3.1  Decisions to Suspend Data Access On June 7, 2012, one week after the terms of reference she was ultimately responsible for all of the decisions were finalized, Assistant Deputy Minister Barbara Wal- relating to data. Ms. Kislock did not personally review any man signed letters suspending data access and signing direct evidence indicating a risk to data existed, nor did authority for invoices, expenses or contract approvals for she review the nature of each individual’s data access, or Mr. Ron Mattson, Dr. Rebecca Warburton and Dr. Mal- lack thereof, prior to suspending data access. Ms. Kislock colm Maclure. On the same day, she also suspended data explained that the investigators saw the suspensions as access for Ministry of Health contractor, and external a proactive measure to ensure none of these individuals researcher, Dr. Colin Dormuth. On June 11, the ministry could be involved in any further wrongdoing while the insuspended the data access of another contractor, Dr. Wil- vestigation was ongoing. She told us that a bare allegation of misuse was sufficient to warrant a data suspension, liam Warburton. because, in her view, implementing suspensions was a None of the employees had signing authority and of the necessary measure to mitigate any potential risks, even if five, only Dr. Dormuth and Dr. W. Warburton had actually these risks were not completely identified. As she told us: used any data access permissions. … my natural inclination would be to suspend The data suspension letters to these individuals described data access. Not as … a finding of guilt or not the suspensions as “standard procedure when a complaint guilt … just to freeze the situation. was received and a review undertaken.” The letters did not otherwise articulate any basis for the data suspen- Ms. Kislock also told us she felt it was appropriate to sions specific to any of the individuals involved. The letters suspend data on a bare allegation because she expected that the allegations would be investigated quickly. Ms. said: Kislock’s perspective was shared by the lead investigator, … a concern has been raised with the Ministry of who told us: Health with respect to how research and contracts … if anyone has any allegations of inappropriate are managed in the Pharmaceuticals Division. In use or just, you know, sharing of data we just response to this complaint, an internal review has suspended until the review’s completed. been undertaken … your role … will be included in this process. The data suspension letters sent to the employees and The letter stated that the data suspension was for the dur- contractors echoed this view, and described the suspenation of the internal review and that the recipient would be sions as “standard procedure when a complaint such as contacted for an interview. The letter also stated that no this is received, and a review undertaken.” conclusions would be made until the review was completed and all facts gathered and analyzed. Some employees who received the letter believed it was a mistake because 1 Ms. Walman, who signed most of the data access suspension letters, told us that she understood the investigation team had unearthed evidence “that was concerning The ministry did subsequently follow-up with details but not until over a year later. 97 98 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS enough to them, as the experts … to recommend that during the review process that this person or these people that their access be suspended.” Ms. Walman also told us that she relied on the lead investigator’s recommendation as a privacy expert and that she had received examples of emails to support the recommendation. She agreed that a data access suspension sends “a very strong message to an employee … [it] is serious.” reporting the breach, containing the breach by taking actions that may include isolating or suspending the activity that led to the breach 7.3.2  Analysis: Data Suspensions This omission in procedure meant that employees lacked guidance about how to assess whether there was a sufficient basis to suspect a data breach. There was an absence of information about whether a bare allegation unsupported by evidence is sufficient to give rise to a suspected breach and trigger the protocol, or whether the ministry should engage in a preliminary assessment of the allegation to determine whether there were reasonable grounds to believe that data may be at risk. assessing the extent and impact of the breach documenting the breach and corrective action taken considering notifying affected individuals informing other parties (such as the Office of the Information and Privacy Commissioner) as appropriate It was difficult for us to understand the rationales for each and preventing future breaches data suspension decision due to the lack of documentation. The lead investigator did not provide the Assistant Deputy The written processes do not establish a threshold for Ministers with any written recommendations to either determining what constitutes a “suspected” data breach. justify the suspension decision or explain the risk each Nor do they provide a framework to help employees deindividual may have posed to the ministry’s data security. termine whether it is necessary to activate the privacy During our interview Ms. Kislock could not recall why she protocols and the obligations which flow from it. The docudecided to suspend data access for specific individuals. ments only provide employees with steps to follow after This is understandable given the passage of time and the having determined that there is a “known or suspected” absence of documentation about the decisions. data breach. The government has written policies developed by the Office of the Chief Information Officer (OCIO) that provide a framework for employees to follow when responding to situations where there are information incidents, including alleged data breaches. According to its policy: An information incident is a single or a series of unwanted or unexpected events that threaten privacy or information security. Information incidents include the collection, use, disclosure, access, disposal, or storage of information, whether accidental or deliberate, that is not authorized by the business owner of that information. The OCIO’s Information Incident Management Process guides employees, including supervisors, in how to respond to incidents that threaten information privacy or security2. It includes requirements such as documenting the incident in detail and its nature. The OCIO also had written processes for responding to “known or suspected” data breaches.3 The process sets out seven steps, which include: These policy documents must be read in their proper context. Designed to provide guidance for responding to suspected data breaches, they do not authorize arbitrary action. One of the Health and Social Services (HSS) lawyers said that he told the lead investigator that if there was reason to believe that an individual was misusing data, then that individual’s data access should be cut off. He explained that the underlying rationale for his advice was the importance of government protecting the personal information under its control. The HSS lawyer was not certain of the timeframe or the specific individuals to whom this advice was relayed and we do not know if he gave this advice to the lead investigator as of June 2012. There is also 2 Office of the Chief Information Officer, Information Incident Management Process, September 2011. 3 Office of the Chief Information Officer, Process for Responding to Privacy Breaches, undated. CHAPTER 7 no information to indicate that any decision-makers had sought, or were provided with, advice on the threshold question at the time the decisions were made to suspend data in June. relation to each individual under review, impeded the ministry’s ability to properly investigate the individuals’ conduct. The investigators ultimately engaged in a mass review of email going back years to see if they could identify anyone who had used data in a manner that might be Whether there is reason to believe data is at risk requires some identification of, or at least reference to, evidence improper or constitute a data breach. Of the approximately that, if proven, could support a conclusion that data may 30 individuals who had their data access suspended, few be misused or disclosed improperly. The standard at this were involved in the data breaches that were reported to stage ought to be low. However, conjecture or mere sus- the Office of the Information and Privacy Commissioner. picion, in the absence of any evidence, will not constitute By the time of the first data access suspensions on June 7, a reason to believe that data is at risk and a resulting data 2012, the ministry had been in possession of the complaint suspension could cause other harms. for more than two months and, as discussed in Chapter 5, Inevitably, circumstances will arise in which a suspect- it had conducted a limited review of the contracts. The ed data breach will require a fast response, particularly ministry had not conducted any review of data issues. where the risk to the ministry or the public is high. The This may explain why the ministry sent letters suspending data access to individuals who did not actually have data Information and Privacy Commissioner said: access. Also, despite engaging with employees of the Personal health information is one of the most Information and Knowledge Services Branch during the sensitive categories of personal information held initial review period, the ministry had not gathered any by public bodies. This level of sensitivity requires information about the nature of the data access for the an accordingly high level of physical, administratwo contractors who did use data before suspending their tive and technical security measures.4 access. There is no evidence that there was urgency to the We do not expect the ministry to conduct an investigation matter that would explain the absence of any preliminary into potential improper use of data before suspending assessment. data access. There are cases where the ministry must The failure to establish a reasonable basis for each of the act quickly to fulfill its responsibilities to protect personal suspensions was particularly problematic for the contractinformation, and this may require the ministry to suspend ors given the resulting duration of the suspensions. As we data access while it investigates. However, acting without discuss later, the investigators were directed to deal with an evidentiary basis can result in arbitrary government matters relating to employees first, and so the investigaaction, which in turn can undermine government programs, tion into the contractors did not get underway until 2013. individuals’ livelihoods and public confidence. In the case of Dr. Dormuth and Dr. W. Warburton, the The decisions to suspend data were made quickly and ministry did not seek information from either of these applied broadly. While some of the later data access individuals to inquire into the nature of their data access. suspensions were justified based on the information the The lead investigator and contracts specialist did meet ministry had at the time, we concluded that the ministry with Dr. W. Warburton in early June 2012, but at that often did not appropriately consider and document wheth- meeting did not seek specific information about the nature er there was any evidence for each individual case that, of his data access and there was no subsequent meeting. if true, posed a risk. Without this evidentiary threshold No employee of the ministry corresponded further with assessment, all of the ministry’s June 2012 decisions to Dr. W. Warburton about his data access. Other than a suspend data access were arbitrary. data demand letter sent in November 2012, the ministry The failure to conduct even a preliminary assessment of did not speak with or seek any information from Dr. Dorthe allegations, and then articulate specific concerns in muth about the nature and extent of his data access for 4 Office of the Information and Privacy Commissioner, Investigation Report F13-02: Ministry of Health, 2013 BCIPC No. 14, 26 June 2013, 19. 99 100 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS more than a year following his data suspension.5 A timely investigation and follow-up with contractors could have mitigated the impacts of the suspensions. the central allegations in question. The ISB did not play its usual role in the Ministry of Health investigation. Once the investigation team received these records, the lead investigator tasked team members with reviewing emails. The team began reading employee emails looking 7.4  Gathering Evidence for evidence of wrongdoing. The team reviewed about 400 Once data access was suspended, the investigative pro- emails provided by the complainant. The reviewer, who cess began. The initial phase of the investigation con- was asked to support the investigation, had provided the sisted of a review of emails, informal interviews, and a investigation team with a binder of documents, containing review of contracts related to the allegations brought mostly emails she had received from the complainant. forward by the complainant. The team at this time still Searching through emails broadened the scope of the indid not include the PSA investigator. It was during this vestigation considerably, as the investigation team idenphase that the first members of the team, including the tified additional “concerns” of which it was not previously lead investigator, began to form their views. These views aware. This, in turn, resulted in the team asking for more were, in turn, shared with new team members. individuals’ emails and LAN drives. The primary task for The terms of reference directed the team to investigate the investigators at this stage, with respect to the emails, the following issues: inappropriate procurement, contract- was to review and categorize them. The investigators ing irregularities and research grant practices, inappro- received a batch of emails and reviewed them for “signs priate data access arrangements, intellectual property of wrongdoing.” One such category was “conflicts of ininfringement, code of conduct conflict and favouritism. terest.” One of the investigators who conducted the email These were broad concerns that needed to be broken review told us they used no framework or standard within down into their specific issues before they could be ap- which to assess conflicts of interest (despite what exists propriately considered and assessed. in the Standards of Conduct for the public service); thus, they did not know what factors to consider. 7.4.1  Email Review The team conducted its investigation primarily by re- By assigning an email to a particular category of wrongviewing and categorizing emails to identify potential doing, the investigators were, as future events would bear wrongdoing that they then used to frame their interview out, effectively reaching a conclusion about that email and the conduct of the employee who had drafted it, but doing questions. so without reference to any standard. The two investigaIn early June, the lead investigator asked and received tors summarizing and categorizing the emails told us they permission from a Director of the PSA to access Ministry assumed their work would be substantively reviewed by of Health employee and contractor email accounts. Cer- someone else later. tain members of the investigation team received these emails through the Information and Security Branch (ISB), The investigation team continued to search the emails for then part of the Ministry of Labour, Citizens’ Services potential wrongdoing, flagging any of concern. No one, and Open Government. The ISB has the technical and however, was assigned the task of gathering all of the forensic investigation expertise to restore employee email related information necessary to fully understand and records and LAN drives. The ISB assists internal investiga- assess the concerns that had been identified. tions, primarily those conducted by the PSA, Office of the Apart from the lack of structure during this portion of the Comptroller General and Office of the Chief Information investigation, the team did not have the resources or the Officer. In typical investigations, the ISB provides an initial software tools necessary to conduct a comprehensive interpretation of the information it has obtained, to help review of the emails. The nature of email is that conversaensure that the requesting ministry remains focused on tions can extend in various directions like the branches of 5 The data demand letter sent to Dr. Dormuth is described in Chapter 12. CHAPTER 7 a tree. The effect was that the investigators did not know with any degree of certainty whether the emails they were relying on represented the full conversation on an issue. 7.4.2  Initial Interviews who was at that meeting, in describing the whiteboard diagram drawn by Dr. Maclure, said: Maclure actually drew up on a whiteboard all of these different contracts … and showed how they all tangled together with each other … it was at that point we were going, “oh, this doesn’t look right” … especially when he’s wearing two hats … walking out of that meeting, the main concerns we had was that there was conflict – major conflict. At the same time as they began receiving and reviewing employee email records, the lead investigator and another team member began conducting interviews. These two investigators appear to have conducted nine interviews between June 12 and 21, 2012. They interviewed the individuals named in the complaint as well as others with whom those employees or contractors worked. These in- When we interviewed him, the same investigator was itial interviews were not audio recorded, although some unable to explain the specific contracts or relationships that caused such concern. However, he did recall meeting notes exist. with Ms. Kislock after the initial round of interviews to From the outset, the investigation focused on Dr. Maexplain that the team had concerns and the work needed clure and Dr. Dormuth as two of the individuals named in to continue. For this investigator, that meant looking more the initial complaint to the Office of the Auditor General. closely at the contracts that Dr. Maclure had described. Based on the allegations in the complaint, the team had concerns both about the number of academic articles the The two investigators also interviewed Drs. W. and R. individuals published and their relationships with academ- Warburton on June 12, 2012. Dr. R. Warburton was not ic peers. Further, the team scrutinized their association told the meeting could potentially lead to disciplinary with Harvard University and Dr. Maclure’s role as B.C. action and was not told she could bring a representaAcademic Chair in Patient Safety at the University of Brit- tive with her. Notes of the meeting indicate that during this interview, the investigators received key pieces of ish Columbia (UBC). information about Dr. R. Warburton’s role in the ministry. Dr. Maclure cooperated in the early stages of the investiDr. R. Warburton gave evidence to us that she found the gation, met with investigators on June 12, 2012, explained questioning “hostile” and could not figure out what she the work he was doing and the various projects he was inwas apparently accused of doing. volved with, and readily provided documents as requested. During this June 12 meeting, Dr. Maclure explained the 7.4.3  Contract Review and Initial Meeting scope of the Alzheimer’s Drug Therapy Initiative (ADTI) re- with the Office of the Comptroller General search project to the investigators by using a whiteboard In addition to conducting initial interviews and reviewing to illustrate responsibilities for various aspects of the the emails, the Ministry of Health investigation team reproject. From his perspective, he was explaining a large viewed contracts related to the various projects associcollaborative research project between the University of ated with the complaint. Victoria and the Ministry of Health that had developed over years through a complicated process of stakeholder Manjit Sidhu, Assistant Deputy Minister of Financial and engagement and policy work. He used the same meeting Corporate Services and Executive Financial Officer, made to describe the other research projects in which the Phar- the decision that the matter required the involvement of the Office of the Comptroller General. On June 22, 2012, maceutical Services Division (PSD) was involved. the investigation team met with the Investigation and Dr. Maclure’s presentation was, however, received far difForensic Unit (IU) of that office, to discuss the contracting ferently than he had intended. The two investigators with issues related to the complaint and initial review. Present whom he was speaking saw what they perceived to be at the meeting were members of the investigation team, a web of conflicts between researchers and the ministry, including the team’s contracts specialist, as well as the with Dr. Maclure at the centre. One of the investigators Director and two staff members from the IU. It is likely that 101 102 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS this meeting is the first time the RCMP was mentioned in obtain in accordance with applicable standards such as the context of the investigation. According to evidence the Standards of Conduct for BC Public Service Employees. from one witness who was at that meeting, in response Some members of the investigation team we interviewed to the lead investigator’s description of the nature of the described the evidence-gathering process as “chaotic” or allegations to the attendees, IU staff questioned why in- “unorganized.” One investigator left the team on July 13, vestigators had not already gone to the RCMP. 2012. That individual told us: In the early stage, the IU was involved with the investiI didn’t like anything where it was going. I knew gation only in a monitoring capacity. It was not actively that it was going to morph into this massive comengaged with the investigation. The IU Director told us plex problem. I knew that four people should not that after the June 22, 2012 meeting he sought permission be preparing a report of this size. And there were from the Comptroller General to begin an active investigajust so many different red flags throughout the tion. As we describe in Chapter 14, in October 2012, the whole process … there was so much information IU commenced an investigation. that I felt we had only got to the tip of an iceberg. The investigation team’s contracts specialist eventually As with the initial review of the complaint, some of the concluded that there were no irregularities in the con- individuals doing the early work lacked expertise in the tracts themselves. He concluded that the contracts had applicable laws, standards or policies. No one provided been properly signed by individuals with appropriate au- the investigators with an analytical framework to guide thority and reviewed by legal counsel, had followed the their work. When we asked one of the investigators how appropriate internal approval process and were consistent she knew what to look for when investigating, she rewith the government’s Core Policy and Procedures Manual. sponded, “Exactly, how do you know?” She said: The contracts specialist communicated his assessment to … there was so much going on that you didn’t the rest of the team, including the lead investigator, on even know where to start. You didn’t know should June 29, 2012. However, a belief that there was wrongwe go this one, should we look at this one. It was doing continued and led the investigators to assume that how do we look at all of them … Yeah, like, just the contract irregularities must be found elsewhere than looking at PEG, you need ten people to look at in the contracts themselves. PEG.6 You need ten people to look at ADTI. Like 7.4.4  Analysis: Evidence-Gathering Process how – I couldn’t just go look at PEG and come back with the answers. The initial evidence-gathering process lacked organization. The investigation team’s process was inefficient In the interviews conducted by the two investigators in and unstructured such that it both failed to gather rel- June 2012, the interviewees provided background inforevant information while concurrently expanding its scope mation about PSD programs, which could have been a 7 of inquiry. The investigation team failed to adequately good first step in the investigation process. and appropriately assess the information that it then did 6 PEG stands for PharmacoEpidemiology Group. It is a working group of the Therapeutics Initiative and “uses epidemiological methods to analyze linked administrative data in British Columbia from PharmaNet, Medical Services Plan, and hospitals to answer important questions unaddressed in clinical trials. Our work includes evaluation of policies and educational interventions, monitoring of drug utilization, innovations in research methodology, and analysis of prescription drug safety and effectiveness.” Therapeutics Initiative, “About the PharmacoEpidemiology Group (PEG)” . See also Chapter 12 for further details about how PEG relates to the work of the Ministry of Health. 7 For example, in June 2012, one Executive Director, concerned that the investigators lacked relevant knowledge about PSD, referred them to division documents that would help them understand the context within which PSD operated, and offered to answer any follow-up questions the team may have had. The investigation team did not contact that Executive Director again to clarify the programs or provide additional context. Instead, when the investigation team contacted the Executive Director in the fall of 2012, it was to conduct a formal interview in the context of allegations of misconduct against the Executive Director. CHAPTER 7 Other background information available to the investigation team in 2012 – but not considered – included briefing notes, approvals of programs and contracts by Assistant Deputy Ministers and Deputy Ministers, job descriptions, division plans, PSD annual performance reports, and the Auditor General’s 2006 report Managing Pharmacare and subsequent updates by Bob Nakagawa, former Assistant Deputy Minister of PSD. report takes a balanced and reasonable approach to some of the concerns raised by the data access personnel. For example, it acknowledged that the perception of preferential treatment and misuse of data could be based on a misunderstanding of facts and said that “a greater understanding and appreciation of the roles and responsibilities of various actors in the data access processes … may help dispel such perceptions.”9  With limited knowledge about PSD’s programs, the div- The failure to develop a solid understanding throughout the isions in the ministry, the ministry’s objectives and pri- team of the programs and practices within PSD and the orities or the employees’ roles, duties, obligations and broader data access challenges in the ministry meant that responsibilities, the investigators drew conclusions based investigators were viewing the emails without adequate on insufficient evidence and overreliance on the original context. As we discuss in more detail below, most of the emails relied on as supposed evidence of wrongdoing complainant. Despite having just worked on the review of data access showed only that people were trying to do their jobs in issues in the ministry, the contents of draft reports pro- a context where unresolved difficulties with data access duced by the lead investigator and team members during were impacting the delivery of ministry objectives. the review did not consider the impact and effects of the data delays on ministry programs that might have provided some alternative explanations of employee conduct. The Timely Access report identified some of the systemic issues that were causing delays in access to data – such as the data stewards’ misperceptions about inappropriate data use.8 The Timely Access report described the history and context of these issues through interviews and information gathered from a variety of stakeholders. The lead investigator described, in her interview with us, her understanding of the systemic data access issues that then existed in the Ministry of Health. The Timely Access report was being worked on at the same time as the Ministry of Health investigation that resulted in the suspension and termination of ministry employees and contracts. Given that the same people were involved in both the Timely Access report and the Ministry of Health investigation, it is difficult to reconcile the lead investigator’s and the Assistant Deputy Minister’s knowledge of systemic issues related to data access, as reflected in the Timely Access report, with the suspension and termination decisions that were clearly related to the problems which existed in the ministry. The Timely Access At least one individual who was interviewed quickly raised concerns about the investigation. This person wrote to the lead investigator and contracts specialist that “… this ‘inquiry’ has called my entire professional career and personal ethics that are integral to that career, into question. I was and am very upset about this turn of events, all based on a malicious anonymous tip to the Auditor General.” The consequences of the investigation team’s failure to appropriately assess the evidence it gathered through emails, interviews and the contracts review, became apparent in the Internal Review report drafted at the end of June. In the following section, we describe and analyze the content of the various drafts of the Internal Review report. 7.5  Internal Review Report The initial results of the Ministry of Health’s investigation were compiled in a draft report called Internal Review: Ministry of Health, Pharmaceutical Services Division, Research and Evidence Development.10 There are several versions of this report, which was never finalized. Despite remaining in draft format throughout the investigation, the investigation team used the report as a briefing document 8 Timely Access to B.C. Health Data: A Review of the Processes and Recommendations for Change, draft report, September 2012. 9 Timely Access to B.C. Health Data: A Review of the Processes and Recommendations for Change, draft report, September 2012, 35. 10 These reports were prepared by the Ministry of Health investigation team and are different from the material prepared by the reviewer in April and May 2012. 103 104 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS and shared it with other ministries, the Office of the Auditor General, and the RCMP. Most crucially, the report was shared with decision-makers who, in turn, relied on it to support their decisions about employees and contracts. The content of the first draft of the Internal Review report was developed in the last week of June and first week of July 2012. The PSA investigator and the Strategic HR manager were not involved in the drafting of the Internal Review Report. The first draft was completed before the first three employees were provided notice of their employment suspensions. The Internal Review report related primarily to the issues raised by the complainant in her March 2012 complaint to the Office of the Auditor General. The concerns regarding the data issues at this point were around general concerns of data misuse and were not about any specific incidents. On June 25, 2012, at 9:48 a.m. the lead investigator wrote to her team requesting that they prepare a draft report for 1:00 p.m. that day so she could provide a progress report to the three Assistant Deputy Ministers who were sponsoring the investigation. She asked the investigators to contribute the following content: 1. Summary of contract/grant findings 2. Summary of phone bill/and other purchases … 3. Data access info … from what we have so far, i.e. what they have been doing to get access The lead investigator explained that she would “write up the specifics per individual.” She said she did not need “a lot of detail” but asked the investigators to “include key findings and any attachments as evidence.” To this email, the lead investigator attached a short summary of the review activities, meetings and interviews that had occurred to date. The individual who carried out the initial review of the complaint prepared a two-page summary of the contract and grant findings. About one hour and 45 minutes later, she emailed the summary to the contract specialist for his input, who in turn provided it to the lead investigator. This investigator used information she had gathered from the complainant and relied entirely on the complainant’s understanding of PSD’s contracting practices when she created the summary. At least one other investigator also relied significantly on the complainant as a source of evidence. The complainant’s views were visible in the first draft Internal Review report created by the investigation team: As shown in Table A the wording in the contract and grant summary is similar to, and in some places exactly replicates, the wording in the complainant’s document. 7.5.1  July 6 and July 18, 2012 Draft Internal Review Reports Between July 3, 2012, and July 6, 2012, email records and tracked changes in the documents show that the lead investigator, contracts specialist and the two employees supporting the investigation provided input and edits to the first draft of the Internal Review report. At the end of this process, the investigators produced a draft report dated July 6, 2012. The lead investigator showed the July 6 report to the three ADM’s sponsoring the review, and she told us they understood the interim nature of the report. Mr. Sidhu forwarded the July 18, 2012 version of the report to the Investigation and Forensic Unit of the Office of the Comptroller General on July 19, 2012. The lead investigator forwarded the August 16, 2012 version of the report to the RCMP on August 24, 2012. The July 6 draft sheds light on what the investigators thought they had found by the date of the employee suspensions. At this stage of the investigation, the investigators set out a series of findings in relation to contracting improprieties, misuse of data, and breaches of the Standards of Conduct by specific employees. The report demonstrates some of the critical flaws in the investigation and provides some understanding as to what went wrong. The first section of the July 6, 2012 draft described the investigative purpose, approach and process. It stated that by July 6, 2012 the investigation had completed some initial interviews, a review of contracts and grants, and a “forensic examination of email communication.”11 The draft listed legal counsel from the Ministry of Justice, Legal Services Branch (LSB), as having been consulted in the investigation. Around mid-June, LSB was asked to 11 The report offers no explanation of what the “forensic” examination of emails entailed. We received no evidence that it went beyond reading the emails. CHAPTER 7 assist the Ministry of Health in responding to concerns from the lawyer of a contractor whose data access had been suspended. statements of fact with unproven allegations of employee misconduct, which gave the appearance that the allegations were established facts. While only in draft form, the When the July 6, 2012 draft report was written, the inves- report suggests that the investigation team was quickly tigators had only shortly before begun their investigation. coming to conclusions prior to taking the necessary inHowever, the language in the draft report is often con- vestigative steps and prior to having reviewed sufficient clusive. For example, the initial conclusions in the July 6 evidence. draft were framed as “findings” and “recommendations,” The July 6 draft report also parallels some of the language including specific recommendations related to the indi- of the complainant in many areas. While the complainant viduals the ministry decided to suspend. The July 6 draft herself did not draft or edit the report, some of the report report stated it “provides an overview of the progress and paraphrased the complainant’s submissions as findings findings to date from the review of procurement practices, without having investigated them yet. grant awards and contracting, data access and related For example, one section of the July 6, 2012 draft deagreements and intellectual property in the Research and scribed the issues the investigation had identified in reEvidence Development section” of PSD. The draft report lation to contracts and grants. This description contained then lists specific issues that the investigators found re- language sourced directly from the complainant’s written lated to standards of conduct for human resources and the submissions to the initial reviewer, as set out in Table A: public service. The issues listed in the report combined TABLE A: COMPARISON OF COMPLAINT AND JULY 6 DRAFT INTERNAL REVIEW REPORT Text written by complainant and provided to reviewer in April 2012 The Ministry of Health is fortunate to have some employees and contractors that also hold positions at universities and are directly involved in health research undertaken there. July 6, 2012, draft Internal Review report Initial findings may suggest that the MoH employs individuals and contractors who also hold dual positions at universities and are directly involved with health research undertaken there. continued on next page 105 106 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS TABLE A: COMPARISON OF COMPLAINT AND JULY 6 DRAFT INTERNAL REVIEW REPORT …continued Text written by complainant and provided to reviewer in April 2012 July 6, 2012, draft Internal Review report [A]llowing MoH employees/contractors who also work at universities to draft, negotiate the terms of and/or be a signatory to a contract or agreement on behalf of the MoH when: There may be suspicion of these MoH employees/contractors also work at universities to draft, negotiate the terms of and/or be a signatory to a contract or agreement on behalf of MoH when: the agreement is with a university where their relative is one of the researchers that will receive MoH data or funding; or the agreement is with a university where their relative is one of the researchers that will receive MoH data and or funding; or the agreement is with a university where the MoH employee/contractor is one of the researchers that will receive MoH data or funding (so that the MoH employee or contractor is, in effect, the other party to the contract with the MoH); the agreement is with a university where the MoH employee/contractor is one of the researchers what will receive MoH data or funding; and the MoH employee/contractor or one of their friends or immediate family members is the other party to an agreement where a Direct Award is being made. Some MoH projects have been subdivided into numerous parts, yet there is no documentation of that connection, nor is there an accounting of the combined total scope and cost of the project nor was the necessary authorization sought. The report appends a summary of the contracts under review. In that summary it makes reference to a specific contract and identified a problem from “recent emails” that indicate the ministry intended to transfer money without a contract. The “recent emails” used to support this conclusion was an email from the complainant herself speculating about this allegation. It had no other evidence to support a concern that money might be transferring without a contract and the contract itself contained the MoH employee or one of their family members is the other party to an agreement where a Direct Award is being made. [S]ubdividing MoH projects into numerous parts, yet documentation to account for the combined total scope and cost are difficult to find and piece together. provisions that authorized the transfer of funds. The ministry’s financial records show that the funds were never transferred, and the ministry was still holding the funds in relation to that contract. 7.5.1.1  Email Summaries As we described in the gathering evidence section above, the lead investigator had instructed two individuals on the investigative team to categorize emails. The individuals CHAPTER 7 told us they were also instructed to create summaries of the emails they had categorized. We reviewed these and found they were not simply summaries as they contained embedded conclusions on issues related to contracting, data access, and the code of conduct. The email summary document appended to the July 6 draft described the review of emails as “forensic.” When we compared the summaries with the source emails, the summaries were often factually incorrect. In other cases, the investigators had misinterpreted the contents of the emails. Some of the emails included in the summary were the complainant’s own messages, including ones that she had forwarded to the team. In other cases, the investigators interpreted emails where employees discussed opinions around data access for an individual as “evidence” that employees and contractors were subverting the usual data access process. In many cases, the summaries equated merely discussing an issue or asking a question with wrongdoing. In compiling the emails for the appendix, the investigators included only emails or portions of an email string that pointed to potential wrongdoing. In so doing, many of the emails were not properly represented in the summaries, or were otherwise improperly categorized. For example: An email described as evidence of “suspicious” contracting practices was a conversation between the complainant and another employee about developing the terms of an information sharing agreement.12 It became clear to us from reading the full email chain in relation to this issue that a valid question about intellectual property rights had arisen through their conversation, but it was subsequently resolved by Legal Services Branch. The full email chain explaining the conversation and resolution was not referenced in the email summary even though both the complainant and the employee were included in the relevant emails. A “suspicious email categorized under “contracts” was the complainant’s own email stating that she was “struggling to find legal authority” related to an agreement she was working on. Missing from the July 6, 2012 draft was the background evidence of years of effort undertaken by ministry employees to ensure it had authority to collect and disclose personal data for this project.13 A “suspicious” email also categorized under “contracts” was a summary of an email from the complainant where she notified the investigators of a potential issue on which she was ultimately mistaken.14 A summary of a “suspicious” email regarding employee access to a spreadsheet containing PharmaCare data was presented as evidence of “securing MoH Data.”15 The summary ignored the fact that the employees were permitted access to the spreadsheet as part of their employment. During the review, one of the investigators wrote to the lead investigator notifying her that, in his view, many of the emails they were reviewing were not actually evidence of any impropriety but mostly just allegations and rumour. Nonetheless, as the investigation continued, the emails came to be viewed as the “evidence” of wrongdoing. Later, in the subsequent drafts of the Internal Review report, the appendix of email summaries was either removed or included with a proviso that the email summaries: … provide support (or evidence) of the allegations in the key findings of this review. Please note: discussions in emails about events (such as inappropriate data access) do not necessarily constitute as evidence that the event occurred; only that it was discussed in emails. These email summaries are intended to inform further investigations. The investigation team completed the next draft of the Internal Review report on July 18, 2012, the day after the first employee suspensions (see section 7.6). By this time the initial reviewer had left the investigation. The sponsoring Assistant Deputy Ministers reviewed the draft report and provided edits to the draft. For example, the draft versions that Ms. Walman was working on at this 12 Internal Review: Ministry of Health, Pharmaceutical Services Division, Research and Evidence Development, draft v. 1, 6 July 2012, 31. 13 Internal Review: Ministry of Health, Pharmaceutical Services Division, Research and Evidence Development, draft v. 1, 6 July 2012, 31. 14 Internal Review: Ministry of Health, Pharmaceutical Services Division, Research and Evidence Development, draft v. 1, 6 July 2012, 30. 15 Internal Review: Ministry of Health, Pharmaceutical Services Division, Research and Evidence Development, draft v. 1, 6 July 2012, 39. 107 108 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS time show that she contributed by adding and removing 7.5.2  Executive Reliance and Perspectives on content to the key findings and preliminary recommen- the Drafts of the Internal Review Report dations in the report. The July 18 draft was considerably On June 27, 2012 Ms. Walman wrote to the lead invesshorter than the first version. It retained only the executive tigator asking to see the Internal Review Report prior to summary, key findings and preliminary recommendations. making decisions regarding suspensions. She writes, To this, the investigators attached four appendices: I appreciate all the effort that has gone into this re1. Terms of Reference for the investigation view. At this point I would like to see the Internal 2. Relationship Web Review Report, with supporting documentation before I move to give letters and suspensions to 3. Glossary of Terms staff. I would like to have some very clearly articu4. List of Acronyms lated findings, evidence and contracts to review The July 18, 2012 draft no longer referred to employees and then move quickly to the PSA investigation. and contractors by name, and the team removed the On July 13, 2012, Ms. Walman wrote to an employee email summaries from the appendices. However, the inof Government Communications and Public Engagement, vestigators maintained the email summaries in a separate attaching a memo containing a “high level overview of the document and continued to rely on them as evidence to review process and our current actions to date” with resupport the report. spect to the Internal Review. Her memo indicated that the executive had relied on the investigation team’s findings 7.5.1.2  Relationship Web The July 18 draft of the Internal Review report appended made in their draft Internal Review report. In her written the Relationship Web, which was intended to show the update she stated: various relationships between Ministry of Health employThe Internal Review draft report has now provided ees and external researchers and contractors. us with a number of findings and they are drafting final recommendations. In order to be proactive The diagram served as a visual map of relationships of and ensure that were are dealing with these individuals and programs. It was, for the most part, acissues and protecting ministry data, immediate curate in depicting the various programs and the relaaction has been taken. tionships between one another and how those programs related to the individuals involved. The diagram was a key Immediate Actions taken: document because the investigation team used it to brief 1. Data access was suspended for four employdecision-makers and, in turn, some of those decision-makees, effective June 7, 2012. ers used it to brief their colleagues and superiors. This 2. Signing authority for invoices, expenses or document was the only document used by Deputy Minister contract approval suspended for same four of Health, Graham Whitmarsh, to brief Head of the Public employees, June 7, 2012. Service, Lynda Tarras and Deputy Minister to the Premier, John Dyble in August 2012. 3. The Public Service (PSA) has been provided with initial findings and will undertake a The problem was not the diagram, but rather its use. Few formal investigation with respect to four staff. individuals we spoke with, other than those on the invesThis is now underway. tigation team, were able to make sense of the diagram. Some people told us they assumed it depicted wrongdoing rather than depicting program and individual relationships in a complex and multifaceted program area. 4. Have met with the Office of the Comptroller General to advise them of findings. 5. Senior staff will meet with UVic and UBC with respect to the contracts that have been provided to their institutions. CHAPTER 7 6. Staff at the Office of the Information Privacy Commissioner’s Office have been advised. meant that it had been shown to be true. She told us that she viewed the findings in the report as follows: 7. Data access being reviewed and suspended for all people involved in PSD contracts under review, in government and at UVic and UBC. So I think what they’re saying is that “here are the issues we’ve identified, that the team has identified.” 8. On Monday, July 16, 2013 four staff will be suspended without pay, pending further investigation by the PSA. Mr. Whitmarsh also received a copy of the July 18, 2012 draft Internal Review report containing the Relationship Web. When we spoke with him about the report, it was clear that he did not have a clear understanding of how it had been developed. Despite this he explained that he was prepared to make decisions based on its conclusions. He told us that he assumed that when the report made “findings,” there was evidence underpinning them. The subsequent July 18, 2012 draft of the Internal Review report was distributed widely. Deputy Minister Graham Whitmarsh, the sponsoring Assistant Deputy Ministers, the Public Service Agency, Government Communications and Public Engagement, the Comptroller General’s office, the Legal Services Branch and the Office of the Auditor 7.5.3  Later Drafts of the Internal Review General all received a copy (although not all necessarily Report on July 18). For Mr. Whitmarsh, it was the first version he had seen; he received a copy when he returned from The July 18, 2012 draft was the most influential in terms of the investigation and the decisions to terminate emvacation at the end of July. ployees and contractors. The reactions of the Ministry’s Assistant Deputy Ministers varied. Mr. Sidhu met with the lead investigator on July 18, The investigators completed a further draft of the Internal 2012, to discuss this version of the report. He reviewed the Review report on August 16, 2012. The August 16 draft draft and, concerned that there was no evidence, asked contained the July 6, 2012 appendix summarizing emails the lead investigator to include the evidentiary basis and made some minor changes to the July 18, 2012 confor the conclusions made in the draft. He said, “when I tent. In the August 16 draft, the investigators added the looked at it, I said … show me the evidence here, right … disclaimer to the email summary stating that the emails we’re making all these recommendations and allegations; were not evidence that the events occurred. While such substantiate that.” He was told the evidence was in the a cautionary note was indeed warranted, it is noteworthy emails the team had reviewed. At the time, Mr. Sidhu that it was first included in a draft of the report at a time was not confident the conclusions were supported by the when some employees had already been suspended withevidence. The lead investigator did not recall Mr. Sidhu out pay. making comments regarding substantiating the Internal Later versions of the report were not completed until the Review report. She recalled him saying “look into this” following year: a fourth draft was completed on September 26, 2013, and the last draft (although it was never finalwith respect to items referred to in the report. Mr. Sidhu’s concern that the investigation lacked evidence ized) was produced on October 4, 2013. This last report was shared by Ms. Elaine McKnight who, at the time, was focused primarily on summarizing the policy and process the Ministry of Health’s Chief Administrative Officer and steps that had been taken over the preceding year. Associate Deputy Minister. As we will describe in the fol- 7.5.4  Analysis: Draft Internal Review lowing section, Ms. McKnight directed the investigators to Reports put together the evidence underlying their findings before The two drafts of the Internal Review report produced in extending the investigation any further. July 2012 had a significant influence on the direction of Ms. Kislock told us that when she read findings in the the Ministry of Health investigation. We identified two report she relied on them as though they were true. Ms. risks at this stage. The report drafts were used to brief Walman did not agree that including a “finding” in a report decision-makers without the investigators first having a 109 110 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS proper understanding of the subject matter or issues they were examining. Many of the drafted conclusions were based on misunderstandings. The second issue was a difference in understanding between the investigation team and the ministry’s executives in properly understanding the stage the investigation had reached. In her December 2014 report on the Ministry of Health internal investigation, Marcia McNeil determined that conclusions of employee wrongdoing were formed at a very early stage. What we heard during our investigation was that there was a different understanding of the state of the investigation. The investigation team believed that the investigation was still in its early stages. On the other hand, a number of ministry executives understood the investigation to have already confirmed a great many of the matters under investigation. 7.6  First Three Employment Suspension Decisions We concur with Ms. McNeil. The Internal Review Report was presented to the decisions-makers with a clearly de- When the PSA investigator joined the team on June 21, veloped theory of the information in the form of findings, 2012 she was briefed by the lead investigator about the including about employee misconduct. While it was in investigation and she made notes of the conversation. Her draft form, it was demonstrably relied on by members of notes mention that they were trying to interview people the investigative team and the decision-makers as repre- and lists concerns that an employee was sending “funding to best friend” and another was “writing proposals” for senting outcomes of the review. Ms. McNeil also found that “the Investigation Team had a university. The PSA investigator recalled her first interadequate resources to review and understand the com- action with the lead investigator as follows: plex web of issues which generated its creation.” This conclusion was based on her understanding of material, provided to her by government, of the diverse backgrounds of the team members and their access to specialist expertise, legal advice and senior executives within the Public Service Agency (PSA).16 An internal PSA document prepared in the fall of 2014, which assessed the investigation, concluded that “the investigation was hampered by the investigators’ lack of familiarity with the complex and highly specialized matter that they were examining and the significant number of witnesses and materials that they were required to review.” What became clear to us in our investigation was that although the team may have had access to sufficient resources to gain an understanding of the issues, it did not effectively utilize those resources when making its initial findings and recommendations. I just remember thinking what am I getting myself into because I [had] no idea. These allegations sound really serious, but my God this going to be a confusing case. So I certainly remember that my head was spinning. Around June 22, 2012, the lead investigator and the PSA investigator contacted legal counsel from the Labour, Employment, and Human Rights (LEHR) group, Legal Services Branch (LSB), Ministry of Justice about the investigation, who usually advised the PSA about legal issues arising from the employment of government employees who are excluded from union membership. On June 25, 2012, that lawyer advised the PSA investigator that he could not act as counsel due to a potential conflict. He referred the PSA investigator to another lawyer within the LEHR group who was based in Vancouver and The drafts demonstrated that the investigators had adopt- had considerable experience in labour and employment ed and expanded on the complainant’s theory of wrong- matters. A significant part of that lawyer’s practice was doing. The investigation team presented its report and advising the PSA on legal issues relating to unionized its “findings” and “recommendations” to decision-makers employees in the context of grievances and arbitrations. without sufficient qualifiers as to the stage the investigaIn this report, we refer to this individual and her colleagues tion was actually at. This led to a misunderstanding that in the LEHR group as the “employment lawyer” or “emwrong-doing had already been found. ployment lawyers.” 16 Marcia McNeil, Investigation Process Review: 2012 Investigation into Employee Conduct in the Ministry of Health, December 2014, 27. CHAPTER 7 The employment lawyer connected with the PSA investi- knowledge as being more advanced than her own at that gator later that same day, and was invited to a conference time. When we asked Ms. Kislock, she had no recollection call with the PSA investigator, the lead investigator, the of the meeting, and told us she was not involved in the PSA Employee Relations Specialist, Ms. Kislock and Ms. decision to suspend employees. Ms. Walman remembered Walman. The employment lawyer requested background a meeting and specifically remembered an issue regarding materials from the PSA investigator in advance of the call. the hiring of Dr. R. Warburton, but did not remember the The PSA investigator informed her that she did not have substance of the discussions. any background materials aside from her notes and two Following this meeting, specific decisions were made to documents describing Dr. Maclure’s PSD job and role as suspend individuals, and suspension letters were drafted B.C. Academic Chair in Patient Safety. Only those two by the Employee Relations Specialist of the PSA. The PSA documents were provided to the lawyer in advance of investigator said that she and the Employee Relations the call. Specialist “probably jointly would’ve both recommended The purpose of the conference call was to discuss issues suspension of the employees, that was totally standard.” relating to the employees under investigation. The em- The Employee Relations Specialist agreed that she thought ployment lawyer told us that she was not asked for any suspensions were appropriate “based on the information advice in the course of that call and that it was not clear I was told.” why she was involved. On June 26, 2012 the Employee Relations Specialist proAlso on June 25, 2012, the lead investigator, the PSA in- vided the employment lawyer with an unaddressed draft vestigator and the Employee Relations Specialist met with letter in relation to suspensions without pay. The covering Ms. Walman and Ms. Kislock. The PSA investigator told email indicated that the attached draft letter was for Dr. us that she recommended that Dr. R. Warburton, Dr. Ma- Maclure and Dr. R. Warburton, and requested that the clure and Mr. Mattson should be suspended. Consistent employment lawyer reply with any comments or feedback with PSA practice at the time, these suspensions would on the draft documents. The employment lawyer reviewed the documents and did not suggest any changes. be without pay.17 Despite having been on the file for only four days (two of which were a weekend), the PSA investigator confirmed to us that she gave the advice to suspend without pay. She gave this advice despite having seen no direct evidence of wrongdoing and, as a result, she relied entirely on information from the lead investigator. The PSA investigator explained that a decision to suspend is made when the allegations are so serious that termination is a potential consequence, and that the “person’s continued employment puts government or the ministry at risk.” The PSA investigator did not obtain sufficient information about the employees to enable her to assess whether they posed a risk to government to support her recommendation to suspend without pay. The PSA investigator told us that, in her view, Ms. Walman and Ms. Kislock were fully up to speed on the investigation at the meeting, and did not need to be briefed on what had been discovered to date. She described their The employment lawyer told us that she was not asked for her advice on the merits of the proposed suspensions without pay. She said that she remembered thinking that the suspensions were premature. She said that, at this stage, she had no file or other information on which to base an opinion as to the merits of the suspensions. This is consistent with the records we reviewed. Around this time, the employment lawyer opened a new file in relation to the investigation, and briefed two of her colleagues in the LEHR group about the matter. One of these two colleagues had significant experience in labour and employment law matters in private practice, and had joined the Ministry of Justice in April 2012. She eventually became the LSB lawyer primarily responsible for matters relating to the terminated employees. 17 The Employee Relations Specialist gave evidence that there was “a lot of conversation” around this question. On June 27, she re-drafted the suspension letters to be “with pay;” this was changed back to “without pay” on July 11. 111 112 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS 7.6.1  Notice of Employment Suspension Decisions and Related Legal Advice Warburton’s counsel. The draft letter defended the suspensions without pay. The employment lawyer explained in the covering email that although the draft letter cited On July 17, 2012, the Employee Relations Specialist inthe Public Service Act and the PSA’s practice as the basis formed legal counsel at LSB that the notices of suspension for Dr. R. Warburton’s suspension without pay, if Dr. R. without pay had been delivered to the affected employees, Warburton brought an action against the province for and that Dr. R. Warburton had indicated she would be breach of contract arising out of the suspension without retaining a lawyer if her pay was not reinstated. The three pay she would likely succeed. The employment lawyer exletters were signed by Ms. Walman, Assistant Deputy plained that, in the absence of a statutory provision or exMinister responsible for PSD. On July 20, 2012, counsel press provision in the employment contract, a suspension for Dr. R. Warburton wrote to the ministry seeking rewithout pay was tantamount to a constructive dismissal. instatement of Dr. R. Warburton’s pay on the basis that the She also indicated that, given the suspension without pay province lacked authority to withhold it, and requesting and Dr. R. Warburton’s personal circumstances, it was details about the allegations against her. The Employee important that the PSA complete its investigation quickly. Relations Specialist provided the letter to the employment On July 26, 2012, the Employee Relations Specialist prolawyers to prepare a reply. vided the employment lawyer with a letter from counsel The employment lawyer asked the Employee Relations for Mr. Mattson for reply. Mr. Mattson’s counsel noted Specialist to provide copies of the following documents that Mr. Mattson supported the ministry’s efforts to confor their file: duct a detailed review of his work and the work of his de the suspension letters partment, and indicated that Mr. Mattson was prepared to cooperate fully with the ministry’s investigation. With re documents relating to the misconduct at issue spect to the suspension without pay, Mr. Mattson’s lawyer PSA policies or memos with respect to the practice noted that the common law only permitted an employer of suspensions without pay to suspend an employee without pay where a suspension The Employee Relations Specialist indicated that she without pay was authorized by a term of the employment did not have any documents supporting the suspensions contract. He noted that there was no provision in the without pay, but that she was advised that there “are employment agreement between Mr. Mattson and the significant volumes of emails which appear damaging ministry that permitted the ministry to withhold Mr. Mattwhich were gathered by OCIO’s office.” She also noted son’s pay. Mr. Mattson’s counsel sought immediate back that she did not have a “written policy” supporting the pay for Mr. Mattson and reinstatement of his salary. Mr. suspensions without pay, but that the practice of the PSA Mattson’s lawyer also noted that communication of the was to suspend without pay in circumstances where there fact of Mr. Mattson’s suspension should be limited to his are allegations of serious misconduct or potential criminal co-workers that have a need to know, and in doing so the charges. ministry was “likely limiting the damage that defamation The PSA investigator gave evidence that the employment by innuendo may be doing to his reputation.” lawyer advised, prior to the suspensions on July 17, 2012, On August 2, 2012, Dr. Maclure’s lawyer wrote to the minthat the PSA should only suspend the excluded employees istry setting out Dr. Maclure’s position that the province with pay because suspending them without pay exposed lacked legal authority to suspend Dr. Maclure without pay the province to constructive dismissal claims. The PSA and reserved Dr. Maclure’s right to assert constructive investigator gave evidence that legal counsel had given dismissal. the same advice to the PSA on past files. On August 3, 2012, the employment lawyer contacted the On July 25, 2012, the employment lawyer provided the PSA Director by telephone and email. The employment PSA investigator and the Employee Relations Specialist lawyer raised a concern that, if the province was unable with a draft response to the July 20 letter from Dr. R. to establish just cause to terminate Dr. R. Warburton, she CHAPTER 7 may have a successful claim for aggravated damages owing to the manner of her termination, and referred to case law wherein an employee was awarded damages in part because she had been suspended without pay prior to her termination. The employment lawyer noted that Dr. R. Warburton’s personal circumstances were also a potentially aggravating factor. was not in a position to judge how the team had arrived at the recommendations to suspend. She said, “I trusted my colleagues, that they had done their homework.” She was clear that “they weren’t asking for my permission to suspend. They had made that decision already.” She understood that the investigators were briefing her so that she was aware of what was happening. Lynda Tarras, then-Head of the Public Service Agency, told us that suspending employees without pay had been PSA’s practice for many years: “if there is a determination that a suspension is warranted, then that is without pay.” This included both disciplinary suspensions and suspensions pending investigation. The PSA relied on the language of the collective agreement to suspend unionized employees without pay. In the case of excluded employees, Ms. Tarras was concerned about the optics of suspensions with pay, telling us, “there’s kind of a philosophy that a suspension with pay is a vacation.” She was sensitive to the public scrutiny that might result from suspending employees with pay, and justified this approach on the basis that if there was an “error” in the suspension, the employee would be repaid. Ms. McKnight said she also told the lead investigator, the PSA investigator, and Ms. Walman that the suspensions should continue for no more than two weeks. The lead investigator told us that she was not present at the meeting. Ms. McKnight told us that the lead investigator was in attendance. Either way, it is clear that the investigation team was aware of Ms. McKnight’s direction in this regard. From Ms. McKnight’s perspective, it was clear at this point that the investigation team was working toward terminations. She understood that the investigation team had done a significant amount of work to reach this point. She directed them to put together the evidence against the suspended employees in a manner that would allow a final decision to be made quickly. She said she told them that “if you’re going to pull that trigger … you need to be ready.” She told us: 7.6.1.1  Involvement of Ministry of Health Executives in the Suspensions … the big thing that they needed to do was ensure As described above, Ms. Walman made the decision to that they had full packages ready for Graham on suspend these employees relying on advice from the PSA his return – if they were going to go down the and the investigators. She signed the three suspension path of full, you know – they were talking about letters. We found no evidence to indicate that then-Deptermination at that point in time. But they didn’t uty Minister of Health, Graham Whitmarsh, participated have the material and the packages ready. And I in this decision. Mr. Whitmarsh was on vacation from said, you have to get your stuff ready. July 14 – 29, 2012 and employees were notified of the Ms. McKnight told us she also instructed the team, in suspensions while Mr. Whitmarsh was away. Mr. Whit- the following days, that they needed to stop doing more marsh told us that one of his Associate Deputy Ministers interviews and focus on the three individuals whose emcalled him while he was on vacation and informed him of ployment was suspended. the suspensions after they had occurred. Mr. Whitmarsh told us that the fact the employees had While Mr. Whitmarsh was away, Ms. McKnight, who was been suspended without pay was a concern for him; howActing Deputy Minister in Mr. Whitmarsh’s absence, met ever, he did not reverse the decision when he returned to with the lead investigator, the PSA investigator and Ms. the office: Walman to be briefed on the suspension decisions. She … over the years I’ve dealt with HR issues and told us that “they did a whole kind of walk-through some you know I’d never seen a suspension without of the exhibits they had … they showed me a number of pay at that point … I don’t have to be a lawyer to emails that where people were starting to circumvent the know that there are serious consequences once rules … they gave me the whole kind of background of where they were going.” At the same time, however, she 113 114 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS you start suspending people without pay … [but] I remember being told that this was a PSA policy. in a way that is consistent with the rule of law. By ignoring legal advice about suspensions without pay in favour of a longstanding practice, the PSA acted both contrary to legal advice and in a manner contrary to sound public administration. The investigation team did not follow Ms. McKnight’s direction to complete the investigation of the suspected employees and bring the results to Mr. Whitmarsh for decision within two weeks. Nor did anyone consider revoking We received no evidence that Ms. Walman was aware the suspensions when the investigation team was unable when she signed the suspension letters of this legal issue. to put forward its case within that short time frame. The 7.6.2.2  Suspensions Were Not Based on Evidence investigation continued to expand to include the conduct Generally, an employer can suspend an employee pending of other employees for reasons described below. an investigation into allegations of employee misconduct, provided the suspension is reasonable and justified in the 7.6.2  Analysis: Suspension Decisions circumstances. Whether these criteria are met can depend 7.6.2.1  Suspensions without Pay were Contrary to Law on the presence of the following factors: As noted, the Ministry of Health’s decision to suspend (1) the suspension must be necessary to protect excluded employees without pay was consistent with the legitimate business interests; PSA’s longstanding practice. As government’s lawyers cautioned at the time, however, this decision was not (2) the employer must be guided by good faith supported by any legislative authority under the Public and the duty to act fairly in deciding to Service Act, nor was it provided for in the employment impose the suspension; contracts. No one at any point in the investigation clearly (3) the suspension must be imposed for a articulated or documented any reasons why the specific relatively short period that is or can be fixed; suspensions needed to be without pay, other than that it and was the PSA’s practice. (4) the suspension must, except in exceptional The PSA knew from legal advice provided to it with prior circumstances, be with pay.18 cases that its practice of suspending excluded employees without pay was likely a breach of the employment The PSA told us that “proven facts or hard evidence” are contract, and amounted to a constructive dismissal of not required to sustain a decision to suspend an employthe suspended employees. It exposed the province to an ee pending a misconduct investigation but that “an emincreased risk that the employees would bring wrongful ployer has an obligation to do some form of preliminary dismissal lawsuits. When the PSA received specific, writ- assessment of the allegation to ensure that they are not ten legal advice to that effect in late July 2012, the PSA objectively unreliable.” continued the suspensions without pay of the excluded We do not expect that government conduct a full invesemployees until their terminations, or in the case of Dr. tigation prior to suspending employees. There may be Maclure, until he took the position that the suspension circumstances where government reasonably concludes without pay was a breach of contract and a constructive that it is necessary to suspend employees pending investigation, where the employee’s continued presence in the dismissal. Because the ministry lacked authority under either the workplace poses a real risk. However, government must Public Service Act or the employment contracts to sus- have a reasonable basis to determine that the suspenpend excluded employees without pay, the ministry acted sion is necessary to protect its business interests. That means government must have some credible evidence contrary to law in doing so. that, if proven, could support a conclusion that a suspenPSA had legal advice that the suspensions were unlawful, sion is necessary. One way that government can obtain and proceeded anyway. In our view government must act information to support such a conclusion, and also abide 18 Cabiakman v. Industrial Alliance Life Insurance Co., 2004 SCC 55 CHAPTER 7 by its obligation to act in good faith, is to speak with the employee to obtain their version of the facts before making a decision. to withhold their pay compounded the unfairness of the suspensions decisions. Accordingly, we have concluded the PSA lacked a reasonable basis to recommend suspension of these three employees, and as a result the Ministry of Health did not have a reasonable basis to suspend them. The decision In this section, we analyze the decision to suspend Dr. Maclure because Dr. Maclure was the only one of the suspended excluded employees who asserted that he had been constructively dismissed. We analyze the suspension 7.6.2.3  Suspensions Created Pressure That In this case, there was an insufficient evidentiary basis Contributed to Poor Decision Making for the suspensions, despite what the investigation team The decision to suspend employees without pay created presented to the decision-makers at the time. Ms. Mc- significant pressure on the investigation team that maniKnight told us that, when she was briefed by the team, fested in two different ways. “they were clear that they had discussions with the agency First, as Mr. Whitmarsh told us, it created a “raging fire … around the support to really get to the point of recomout of control” that he felt he had to deal with quickly. As mending termination.” One thing she thought was “clear the summer wore on, and the investigation continued to at the time” was “that they had enough evidence to be gather information through email review and interviews, able to make their decisions.” Mr. Whitmarsh became increasingly concerned about However, the only clear written record of what the inves- the possibility that news of the suspensions would betigation team had found at the time of the suspensions come public before government was prepared to respond. was in the form of the draft Internal Review report. As Moreover, it was not clear that the investigation team we have described in the section above, the conclusions had collected the information necessary to support the contained in the draft report were problematic and un- decisions. Mr. Whitmarsh told us: supported by evidence. Some of the conclusions were … the challenge with that, of course, is the funbased on allegations alone, while others were based on damentals of the evidence gathering hadn’t hapunreliable evidence. As we noted above, ministry execupened. It was all back to front so, and then having tives had a different understanding of the degree to which taken those effectively time sensitive decisions the investigation team’s reports and findings represented to lay people off – and this got even worse once factual determinations. people launched lawsuits because the evidence Further, neither the ministry nor the PSA considered that would be required to defend a lawsuit for whether the information obtained prior to the suspensions the most part, you know, hadn’t been collected … could support a reasonable basis to conclude the susSecond, the PSA investigator’s recommendation of suspended employees posed a risk to government’s interests. pensions so early in the investigation had the effect of We obtained no evidence that the PSA or the ministry committing the team to a certain position that became considered this question or analyzed the information it had increasingly difficult to back away from. The decision to at the time to determine whether a suspension was necessuspend employees presumably based on the findings in sary. At this stage, the ministry had already purported to the draft reports, and the information relayed during the suspend Dr. Maclure and Dr. R. Warburton’s data access briefing of Ms. McKnight show that her understanding (as previously described, neither had data access) and was that team was laying the foundation for terminations. their signing authority for invoices, expenses and contract approvals. The ministry had done the same in relation to Mr. Mattson. Leaving aside whether these steps were 7.7  Dr. Maclure’s Employment necessary or had any effect, we saw no evidence that Suspension and Constructive anyone considered whether these steps were sufficient to mitigate any perceived risk to the ministry. Dismissal 115 116 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS and termination decisions for the remaining employees in Chapter 9. The decision to suspend Dr. Maclure meant that the ministry lost someone who, for the previous two decades, had been a valuable resource and significant contributor to the development of its evidence-based pharmaceutical policies. During his tenure with the B.C. public service, Dr. Maclure took several leaves of absence without pay to conduct research work at Harvard, the University of Victoria, and Odense University in Denmark. In 1994, Dr. Maclure, with support from the Ministry of Health, obtained a multi-year, $500,000 grant from Health Canada for what he described in a submission to us as a “collaboration between internal ministry evaluators and external University researchers on evaluating a new PharmaCare policy.” From July 1999 to 2001, Dr. Maclure was on a half-time secondment to Harvard “for the purpose of research/investigation to benefit Pharmacare.” In this section we begin by describing the significant history of Dr. Maclure’s research experience and employment with the Ministry of Health. We then continue by assessing the reasonableness of the ministry’s suspension decision. We conclude that the ministry’s decision to suspend Dr. Maclure was not justified. We draw this On March 1, 2002, Dr. Maclure received the Michael Smith conclusion based on the broader factors articulated above Foundation for Health Research (MSFHR) Distinguished as well as on our assessment of the specific evidence Scholar Award. To allow Dr. Maclure to accept this award, the investigation team had compiled to support its case the ministry approved his request for a five-year leave of absence. Because the ministry valued the contribution against Dr. Maclure. Dr. Maclure would make to the ministry’s own objectives, 7.7.1  Dr. Maclure’s Background and Role with the then-Deputy Minister of Health granted Dr. Maclure special permission to accept an appointment as an adjunct the Ministry of Health Dr. Maclure studied biochemistry at Oxford, England, and professor at the University of Victoria without having to 19 epidemiology at Harvard University. While teaching at resign his job at the ministry. Because a public service Harvard in the 1980s, he invented the case-crossover employee is usually not permitted to take a leave of study design, an analytical epidemiological tool which is absence for remunerative work elsewhere, the Deputy Minister approved a special condition for Dr. Maclure’s today used by researchers worldwide. leave that enabled him to maintain his employment with Dr. Maclure left Harvard and started his career as a pubthe ministry provided his work aligned with ministry oblic servant with the Ministry of Health on September 3, jectives. The then-Deputy Minister of Health turned her 1991, as a research officer in the Research and Evalua- mind to the benefits the ministry would gain by allowing Dr. tion Branch. Dr. Maclure viewed joining the ministry as Maclure to accept and pursue research under the Michael an opportunity to apply the scientific method to policy Smith Foundation grant. problems and to bridge the gap between the research community and government public policy makers. He be- Dr. Maclure’s expertise and value to the ministry was lieved using the scientific method led to a more rigorous widely recognized within the ministry’s senior leaderapproach to policy development and would result in evi- ship at the time. In a letter of support asking the Deputy dence-based decision making to advance the public good. Minister to approve Dr. Maclure’s request, Dr. Maclure’s His goal, as articulated to the ministry, was to increase then-Assistant Deputy Minister said: collaboration and improve linkages between researchers Malcolm’s research areas are largely directed and decision-makers. Both Dr. Maclure’s role and his goals toward evidence-based care and focus strongly were expressly approved of by the senior leadership inside on developing evidence that would be of use to the ministry, including at the Assistant Deputy Minister decision-makers in health care. Consequently, his and Deputy Minister level. activities at UVic will continue to be of great interest to the Ministry and to the health authorities. 19 Dr. Maclure had won the award as a senior investigator. The MSFHR no longer provides senior investigator awards as they now have a different structure for grants to senior investigators. CHAPTER 7 Although he will be on a leave from the Ministry, his work will be of continuing interest to us … when Malcolm returns to the Ministry after five years, he will have developed a background of highly useable research and this will be of great benefit to us. his academic work would remain intricately aligned with that of the ministry. During the five years that he was on leave, the ministry directly engaged Dr. Maclure in projects because they wanted him to promote the evaluation of ministry programs by researchers. Moreover, they wanted the benefits of linkages between academia and Instead of granting Dr. Maclure the five-year leave of ab- government, which included leveraging ministry funding sence at the outset, the then-Deputy Minister approved for specific projects to stimulate financial support from the leave on an annual basis, which meant that Dr. Ma- funding agencies. The Education for Quality Improvement clure had to re-apply each of the five years he continued in Patient Care (EQIP) initiative described in Chapter 4 the leave. As part of Dr. Maclure’s annual renewal re- and below is a good example of this intentional synergy quest, he provided the ministry’s senior leadership with between Dr. Maclure’s work and the ministry’s goals. detailed updates of the work he was doing coupled with In his ongoing communications with the ministry, Dr. Madescriptions of how his work benefited the ministry. As a clure envisioned the ways his employment with governresult, his personnel file includes significant detail about ment could evolve when he returned at the end of his the ministry’s rationale for approving his leave each year leave of absence. For example, Dr. Maclure suggested and the contributions made by Dr. Maclure that were dir- that the ministry could support building permanent relaectly relevant to the Ministry of Health. For example, a tionships between it and researchers: memorandum to the Deputy Minister’s approval for the Long term goal: by 2006 I am to establish myself 2003–2004 extension of Dr. Maclure’s leave demonstrates as being 50% with the Ministry and 50% with the that the ministry relied on and benefited from Dr. Mauniversity on a permanent basis. I think that will clure’s skills while he was on leave: be the best way for me to serve as a bridge beIn 2003, Malcolm Maclure will be devoting about half of his effort to drug policy evaluation and a proposed BC response to the Romanow Commission’s recommendation to create a Centre for Innovation on Pharmaceutical Policy. 1. How Difficult would it be to replace the employee? Malcolm Maclure’s skills are rare and his work has focused on enabling evaluations of Ministry programs by external researchers. He will continue to take on this role while at the University because an aim of this research program is to increase linkages between the University and the Ministry. Therefore, during the tenure of this award, his skills will continue to be available to the Ministry. Dr. Maclure’s personnel file includes records that detail the benefits to the ministry of allowing him to pursue research relevant to ministry programs across various divisions. It is significant that while on the five-year leave, both Dr. Maclure and the Ministry of Health expected that tween PharmaCare and the research community in the long run. This goal is much like clinicians at teaching hospitals who have joint appointments with the university. In the coming year, I will develop a proposal that 50% of my funding come from CIHR and 50% from the Ministry on an experimental basis. Such a grant from CIHR will help reduce the institutional barriers to such a novel joint appointment. During his leave extension request the next year, Dr. Maclure again expressed his view about the potential his relationships with the research community provided: In my annual report last year, I said I aimed by 2006 to establish myself as 50% with the Ministry and 50% with the university on a permanent basis … For the record, I still hope something like this is possible. At the same time, Dr. Maclure also gave the ministry a draft proposal outlining the potential for a B.C.-led national network for innovation on pharmaceutical policy. Dr. Maclure’s idea centred on the opportunities created 117 118 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS by a “unique structure” in which half of the researchers would be located within provincial ministries of health to facilitate the opportunities for “linkage and exchange” between these two groups. Maclure’s expertise in study design (obtained through his academic role) meant that, when reviewing or developing proposed research or evaluation (as a government employee), he could help the ministry maximize value for its money by ensuring the study was designed in such a way as to provide useful results. The ministry was very interested in Dr. Maclure’s concept of linking decision-makers with researchers. One way the ministry implemented this approach arose when In 2009, a panel selected and appointed Dr. Maclure as it engaged with Dr. Maclure during the development of the first B.C. Academic Chair in Patient Safety, a position the EQIP initiative. While on leave, Dr. Maclure secured located at the University of British Columbia.22 Because external grants that were used to further support EQIP. of his appointment as Patient Safety Chair, UBC granted In 2006, the ministry finalized its three-year EQIP contri- Dr. Maclure a tenured position with the Department of bution agreement with UBC.20 Notwithstanding the fact Anaesthesiology, Pharmacology and Therapeutics. that Dr. Maclure was likely to return to his position at the UBC established the Patient Safety Chair position in 2005 ministry soon after, the ministry expected that Dr. Maclure after the Ministry of Health granted it $3 million to supwould continue to play a significant role in the project’s port the development of leadership capacity in the field of implementation and evaluation design. When he did return patient safety. The chair’s role is meant to enhance safe full time to the ministry in 2007, the ministry preserved and appropriate patient care through research and educaDr. Maclure’s role as the Implementation Director on the tion. In a 2005 letter to UBC, the then-Deputy Minister of EQIP initiative, having determined it was consistent with Health explained the ministry’s commitment to supporting its interests. a broad range of research and educational activities to enThe Pharmaceutical Services Division underwent a signifi- sure British Columbia’s health care system was supported cant reorganization in 2006. Bob Nakagawa, the Assistant by current knowledge of health, evidence-based treatDeputy Minister of PSD, saw Dr. Maclure’s role as key ment of illness and disease, and excellence in patient care. to developing the pharmaceutical and policy evaluation Thus, through both its funding and its public health and work that PSD would be undertaking.21 On December 8, safety focus, the Patient Safety Chair position remained 2008, Dr. Maclure became the Director of Research and strongly connected to the interests and the objectives Evidence Development reporting to the Executive Direc- of the Ministry of Health in administering the provincial tor of Policy, Outcomes Evaluation and Research in the health system. When Dr. Maclure was selected for the Pharmaceutical Services Division. Dr. Maclure had no chair position, UBC and the Ministry of Health agreed to a data access, no budget and no staff in this position. Dr. joint appointment in which Dr. Maclure would continue his Maclure’s role was unique and, in his view, meant to be work part-time at the ministry until his retirement, so long like a “university researcher in residence.” as both parties continued to agree to the arrangement. This was seen to be in the interests of both institutions At the time, the decision-makers in PSD continued to believe that there was a significant benefit to Dr. Maclure who would continue to benefit from Dr. Maclure’s skills holding a dual position (in both academia and government) and expertise. than if he were solely in one “world” or the other. The min- There was no formal salary sharing agreement between istry could have required Dr. Maclure to sever his academic UBC and the ministry to facilitate this arrangement. Rather, ties but did not. Evidence from executives who worked the ministry simply reduced Dr. Maclure to half-time status at the ministry at the time explained how his academic and paid him half of his salary. Dr. Maclure made special affiliations furthered ministry objectives. For example, Dr. arrangements with UBC with regard to his salary as the 20 The contribution agreement for EQIP is between the ministry and UBC. The agreement is not between the ministry and Dr. Maclure. Dr. Maclure is not a party to the agreement himself; nor is he a subcontractor to the agreement. 21 See Chapter 4 for a detailed description of the history of PSD. 22 BC Patient Safety & Quality Council, “Malcolm Maclure” . CHAPTER 7 Patient Safety Chair that were misunderstood by the 2012 investigation team. We investigated and determined Dr. Maclure was obligated to work half-time at the ministry, and that he was paid half the position’s full time salary. Because Dr. Maclure was only working part-time for the ministry, by 2009 the Policy Outcomes, Evaluation and Research (POER) Branch required a co-director to share Dr. Maclure’s position. At that time, the Executive Director of POER created a position description, with the assistance of Dr. Maclure, who had helped develop the role over the previous two years. The following excerpts from the position description articulate the Dr. Maclure’s and the other co-director’s unique role in the ministry: The Dir[ector] of research and evidence development provides leadership, expertise, strategic advice and management skills on the integration of research processes and evidence production with policy development. The position is responsible for bridging the cultures of academe and government by understanding the different pressures and barriers affecting academics and government decision-makers, as well as their needs for different types of communication tools. The position provides expertise in study design methodology and statistical analysis, and scans the environment for research and reviews of evidence related to PSD strategic needs, and evaluates the quality and applicability of findings to support senior decision-making. … Position links: Multi – University interdisciplinary research teams … Collaborates on the development of scientifically valid assessment tools and research protocols. Identifies other research agendas and analyses, and interprets, evaluates and disseminates research findings. Negotiates with researchers on scope and deliverables of research grants and contracts. Authors papers for publication and delivers lectures on findings. Represents PSD at public meetings and sessions and to other provincial drug benefit plans on matters concerning research priorities and findings. Dr. Maclure’s responsibilities included authoring papers for publication and lecturing on findings. The ministry had a strong interest in supporting academic publications in which its employees were involved. This was particularly the case for someone in Dr. Maclure’s role. Relying on the published results of academic research in peer-reviewed journals and other forums meant the ministry could better support and defend its evidence-based decision-making framework. In fact, the ministry had longstanding experience supporting research and scientific publishing dating back to the initial evaluations of the Reference Drug Program. Given this overall interest in publishing, and the close links Dr. Maclure maintained with the academic world, it is not surprising that his name appeared on numerous publications relating to British Columbia’s pharmaceutical policy. This was expected of Dr. Maclure while he was on academic leave and was also part of Dr. Maclure’s role at PSD when he returned. One former PSD employee told us she remembered receiving ministry-wide email notifications acknowledging Dr. Maclure’s contributions when his articles were published. 7.7.1.1  The Reference Drug Program Assessment One example of the contribution of Dr. Maclure can be found in the Reference Drug Program assessment. As described in Chapter 4, in the late 1990s the provincial government faced significant opposition to its Reference Drug Program (RDP) from various sources, including the British Columbia Medical Association, 23 patient groups and the pharmaceutical industry. As the first Canadian jurisdiction to introduce this type of practice, “its experience [was] being watched across the country and around the world.”24 Those in opposition to the RDP argued not only that it created administrative hurdles, but that switching people’s drugs could harm their health. Despite the significant 23 Now known as Doctors of BC. 24 Anne Mullens, “Reference-based pricing: Will other provinces follow the BC lead?” Canadian Medical Association Journal 158 (1998):239-41. 119 120 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS opposition to the RDP, it is an approach that continues to be used today. Part of the success of this approach can be attributed directly to Dr. Maclure’s role at the ministry. functions related to research, including support of the Drug Intelligence Branch (DI) and the Drug Use Optimization Branch (DUO). The responsibility for budgeting and operation of the research contracts fell primarily to the Executive Directors in the DI and DUO branches. Dr. Maclure provided his expertise in research methodology to the projects in those branches and as such his roles on all these government projects were expressly contemplated and indeed fostered by the ministry. Opponents of the RDP put pressure on the ministry to respond to justify its approach. When asked to assist the ministry in addressing the criticism that switching drugs could increase deaths, Dr. Maclure designed, within 48 hours, a quick study to compare people on a certain medication who were switched and others who were not switched. The ministry was able to use its administrative 7.7.2  Analysis of Suspension Decision health data to conduct this study in-house. It was not sufficiently rigorous to be conclusive, but the results of 7.7.2.1  Unreasonable and Unfair Investigative Process this preliminary study supported the ministry’s belief that, The lead investigator and the investigation team’s concontrary to the concerns expressed, people were not dying tracts specialist interviewed Dr. Maclure on June 12, 2012. when their medication was switched in accordance with The lead investigator told us that Dr. Maclure was not at the policy. A former executive in the ministry described Dr. that time under suspicion and as such he was not cauMaclure as “ingenious” in being able to design effective tioned that his conduct was at issue. However, the substance of the complaint to the Auditor General, the terms studies in a short amount of time. Dr. Maclure’s small study laid the groundwork for the min- of reference for the investigation and the suspension of istry to fund external researchers to study and analyze the his data access demonstrate that he was one of the focal RDP. Dr. Maclure’s study propelled the ministry to obtain points of the ministry’s investigation and that his conduct $90,000 in seed money to fund three external studies. 25 was, in fact, under review at that time. These studies also showed that the RDP had no detri- The investigators also interviewed Dr. Maclure’s Executive mental effects on patient health. The ministry wanted Director on June 12, 2012. She was not told details of the the research to be published in a peer-reviewed journal allegations against her employees, including Dr. Maclure. rather than just in a government report. The view was that However, the investigators implied generally that her emsuch publication would allow the evaluation – whatever ployees were manipulating contracts and pushing to get its results – to carry more weight with both supporters contracts for their friends. and opponents of the RDP. This Executive Director told them that her employees were In 2012, the investigators discovered publications related trusted public servants who took their responsibilities to the evaluation of the RDP in which Dr. Maclure was seriously and whose commitment was exemplary. This involved. Without appreciating the way in which these Executive Director explained that Dr. Maclure did not have publications were connected to the ministry’s own goals, access to data and did not need it for his role. She pointed the investigators formed the conclusion that Dr. Maclure the investigators to the POER Branch Plan as a resource to help them understand the programs. She described was improperly involved with external researchers. the Pharmaceutical Services Division as big, complex and 7.7.1.2  Dr. Maclure’s Role in 2012 detailed, and told the investigators she was available if By 2012, Dr. Maclure was working part-time as a co-dir- they needed help understanding certain information. The ector in the Policy Outcomes, Evaluation and Research investigators did not follow up on her offer and did not (POER) Branch of PSD and part-time as B.C. Academic Chair in Patient Safety at UBC. The POER branch’s 25 It was seed money because each university obtained large amounts of additional funding to conduct the research. Information about these studies is summarized in Malcolm Maclure, Bob Nakagawa, and Bruce Carleton, “Applying Research to the Policy Cycle: Implementing and Evaluating Evidence-Based Drug Policies in British Columbia,” in Informing Judgment: Case Studies of Health Policy and Research in Six Countries, (New York, NY: Milbank Memorial Fund, September 2001), 35-70. CHAPTER 7 approach her again until September 2012 when they con- the suspension letter that the investigation into Dr. Maclure’s conduct was ongoing. Particulars of the pleading ducted a more formal interview with her. were later provided and we discuss those in the next Ms. Walman made the decision to suspend Dr. Maclure based on a recommendation from the PSA investigator. section. At this point in the investigation the team had focused 7.7.2.2  No Factual Basis for Suspension only on the complainant’s allegations. They had conducted As we discussed in section 7.7.1, Dr. Maclure, together little, if any, analysis and had not considered any exculpa- with the co-director Dr. R. Warburton, held a unique role tory evidence such as that provided by Dr. Maclure in his in the ministry that was unusual and involved complex interview, or had they pursued the Executive Director’s linkages with the academic community. This was a conoffer to provide more information about PSD. scious decision by the ministry in previous years. ProperThe PSA investigator had only been on the team for four ly understanding that role would have required in-depth days when she recommended the suspension on June 25, and careful analysis by the investigative team. We deand had not reviewed Dr. Maclure’s personnel file or the termined that the investigation team had no evidence of evidence assembled by the team. She did not detail the any wrongdoing by Dr. Maclure justifying his suspension. reason for the suspension recommendation in a report. Nonetheless, both the investigators and Ms. Walman After his suspension without pay, Dr. Maclure communi- continued to believe that Dr. Maclure was at the centre cated a willingness to participate in the investigation of the allegations of wrongdoing – more than one witness and attend further interviews. As a condition of his par- described him pejoratively as an “air traffic controller” of ticipation, however, he requested that the government those wrongdoings. Throughout our investigation, we provide him with particulars explaining the reason for his heard various working theories that the investigators suspension. Despite receiving legal advice, the ministry held about Dr. Maclure. was unwilling or unable to provide any particulars to Dr. Maclure at this stage. On August 15, 2012, the PSA Director told the employment lawyer that an interview with Dr. Maclure needed to occur as soon as possible and that, if it did not occur, the province might act on the information that it had. The employment lawyer replied that it could “get very ugly” if the government were to proceed without first speaking with Dr. Maclure. Ms. Walman could not explain or recall the factual basis on which she had made Dr. Maclure’s suspension decision. This is not unusual considering we interviewed her several years after she made her decision. She remembered general issues of conflict of interest and Dr. Maclure’s involvement in hiring Dr. R. Warburton. She said she expected, for a suspension, that there was “enough evidence to … lead me to believe that wrongdoing was, could be, might be occurring … serious enough to take action, but not to terminate until the … final review would be finished.” She relied on the recommendation from the PSA that conflicts of interest existed and that there was enough evidence to suspend Dr. Maclure while the investigation was ongoing. Dr. Maclure treated his suspension without pay as a constructive dismissal. In September 2012, Dr. Maclure, through counsel, commenced a lawsuit for wrongful dismissal and defamation. In its response to Dr. Maclure’s lawsuit, the government expressly pleaded that he had The suspension letter stated only that Dr. Maclure had been suspended pursuant to the Public Service Act – in been suspended without pay because “as a result of our other words, that it had “just cause” for his suspension.26 information gathering and interviews with yourself and The specific allegations of what the government con- others significant concerns became apparent to the emsidered “just cause” were not, however, articulated in ployer. These concerns included the misuse of health data writing when it pleaded its legal defence. Moreover, the and methods by which contracts have been or are being government’s position in its legal pleading that it had “just awarded.” The text of the letter was identical to that sent cause” was inconsistent with the ministry’s statement in 26 Pursuant to the Public Service Act, R.S.B.C. 1996, c. 385, s. 22. 121 122 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS to other suspended employees and the concerns were not in any way particularized to Dr. Maclure. The ministry had no evidence that Dr. Maclure misused health data. When they were interviewed on June 12, 2012, both Dr. Maclure and his supervisor explained that he had no data access. By June 20, 2012, the investigators had confirmed from a review of the data access records that this was accurate. The investigators’ suspicions focused on the fact that Dr. Maclure was a co-author on publications that may have used British Columbia administrative health data. They did not consider whether the ministry had permitted the use of that data or whether Dr. Maclure’s contribution to the publication involved him accessing any data. decision-maker and he was not the signatory on the contracts. There was suggestion by the complainant that even if Dr. Maclure was not awarding contracts he might have improperly been influencing the direction of contract awards by virtue of his relationships in the research community, and in particular his long-standing relationship with Dr. Dormuth. We examined the contracts about which the investigators had concerns, in particular as they applied to Dr. Dormuth’s involvement in TI and ADTI. In the case of the ministry’s relationship with TI it was clear that UBC had a long-standing series of funding agreements with the ministry that both pre-date Dr. Dormuth’s employment at UBC and continued thereafter. Our examination of the ADTI agreements clearly showed that the ministry had spent several years engaging with the research community before the ADTI commenced in 2007. The research community was relatively small and most of the researchers either previously held, or then held, research agreements with the ministry. The ministry made its ADTI contracting decisions based on its pre-existing knowledge of the research community and it had the authority to approve direct award contracts for the ADTI, in accordance with government policy in place at the time. While Dr. Maclure’s role for the ministry was to work with the research community, which as we note was rather small, we saw no evidence that Dr. Maclure improperly influenced the ministry’s procurement decisions. This is discussed further in Chapter 14 in the context of the IU report. The ministry had no evidence that Dr. Maclure had engaged in wrongdoing with respect to how contracts were awarded. The investigators did not understand or analyze Dr. Maclure’s roles, the structure at PSD, the contract approval process, the nature of the programs at PSD, or the context in which contracts were awarded. Moreover, the investigators had information confirming that Dr. Maclure had no expense authority and had not signed any of the contracts that they were reviewing on behalf of the ministry. The investigators’ information showed that Dr. Maclure was not a party to any of the contracts himself and that he did not own a company that was a party to the contracts. In fact, contrary to one of the allegations, a company search showed he did not own any companies in the relevant time period. Moreover, one of the investigators had, by the end of June 2012, confirmed that the When Ms. Walman made the decision to suspend Dr. contracts being reviewed were consistent with govern- Maclure, the investigation had produced no evidence of any wrongdoing. Further, the investigators also had no ment’s Core Policy and Procedures Manual. clear understanding of Dr. Maclure’s role or the programs One of the allegations was that Dr. Maclure played a they were reviewing. The investigators had only a vague, role awarding ministry contracts to a small number of incomplete and poorly formed idea of wrongdoing based researchers associated with him. During our investigation on little more than the allegations contained in the initial we were told that the community of academic method- complaint to the Auditor General (subsequently advanced ologists and pharmecoepidemiologists is relatively small by the complainant during the initial review). We reviewed in British Columbia and, as a result, many of them have the case against Dr. Maclure put forward by government in collaborated on research work from time to time. Given its defence of the litigation he commenced. The only writhis background, Dr. Maclure had connections with many ten articulation of the Ministry of Health’s case provided people in this research community. A central part of his to Dr. Maclure was in the context of the litigation: a letter role was liaison with the academic research community. to Dr. Maclure’s lawyer in March 2013, which included a Dr. Maclure had not awarded any of the contracts that list of particulars detailing the reasons for his suspension. the investigation team had reviewed. He was not the CHAPTER 7 The list of particulars was created by legal counsel based face of evidence that Dr. Maclure’s conduct was proper. on information received from the investigators. We exam- As discussed in Chapter 13, outside legal counsel for the ined the list of particulars and found, after reviewing the province in Dr. Maclure’s lawsuit later concluded that the investigation files, that they showed no wrongdoing by Dr. evidence against Dr. Maclure was “weak or non-existent” Maclure. For example, the ministry used emails that Dr. and “that given the lack of evidence in support of the Maclure had legitimately exchanged with contractors and allegations” against Dr. Maclure, there was considerable researchers as evidence that he had disclosed confiden- risk that a court would award aggravated damages tial information to third parties. Not only did we find no Based on the above, we concluded that there was not evidence of wrongdoing, but the examples of misconduct a justifiable reason for the Ministry of Health’s decision the ministry forwarded to its external legal counsel were to suspend Dr. Maclure. Moreover, withholding his pay based solely on investigators’ speculation, without proper during his suspension was, as we have described above, consideration of the merits of the allegations and in the contrary to law. Findings F 7 The Ministry of Health’s June 2012 decisions to suspend data access for various individuals: a. W ere wrong because those decisions lacked adequate justification or sufficient documentation explaining the rationale. b. W ere unrelated to the three suspected privacy breaches later discovered and reported to the Information and Privacy Commissioner. c. W ent on too long because the ministry unduly delayed investigating its concerns about the contractors’ data access and use. F 8 T he Ministry of Health’s investigation was procedurally flawed, and therefore improper, as the investigation: a. Lacked organization and appropriate division of roles. b. Had no investigative plan that the team followed. c. Failed to adequately and appropriately assess the information it obtained. d. Failed to adequately document its activities. F 9 The draft investigation reports produced by the investigation team in July and August 2012: a. Made findings unsupported by the evidence. b. S ignificantly influenced the direction and timing of the employment decisions which followed. 123 124 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS F 10 The suspensions of the four excluded employees suspended in July and August 2012 were contrary to law because they were without pay, and were wrong because: a. They lacked sufficient evidentiary basis. b. T hey were made without due regard for whether lesser measures were sufficient to address the perceived risk to the ministry. F 11 The Ministry of Health had no lawful basis to constructively dismiss Dr. Maclure. CHAPTER 8 8.0 / MINISTRY OF HEALTH INVESTIGATION CONTINUES THROUGH THE EMPLOYMENT TERMINATIONS: LATE JULY TO OCTOBER 2012 8.1 Introduction In this chapter of the report, we focus on the ministry investigation between July 27 and October 19, 2012. This part of the investigation occurred after the initial employee suspensions and following the completion of the first two drafts of the Internal Review report (July 6 draft and July 18 draft). The core investigation team during this time consisted of the lead investigator, the PSA investigator, the contracts specialist and the Strategic Human Resources manager. This chapter is organized around five key developments in the investigation that occurred during this time frame. First, the Ministry of Health suspended four additional employees. Second, the Deputy Minister of Health Graham Whitmarsh began to oversee the investigation. Third, the investigators continued to conduct interviews, this time in a more formal way. Fourth, the investigators began to focus on three suspected privacy breaches. Fifth, on behalf of the ministry, the lead investigator and the Office of the Comptroller General (OCG) made a report to the RCMP about the investigation. Within this time frame, the ministry also dismissed six employees for what it claimed was just cause, and made a public announcement about the investigation and dismissals. We discuss the decisions to dismiss those employees and the public announcement about them in Chapter 9 of this report. 125 126 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS View main timeline Jul 27, 2012 Aug 1, 2012 Ramsay Hamdi’s data access suspended. Mr. Hamdi and David Scott are suspended from employment. Aug 24, 2012 Aug 23, 2012 Lead investigator contacts RCMP. Director of the Investigation and Forensic Unit of the Office of the Comptroller General contacts RCMP. Aug 3, 2012 Aug 3, 2012 Deputy Minister of Health Graham Whitmarsh briefs Minister of Health Michael de Jong. Lead investigator discovers possible privacy breach. Second possible privacy breach discovered soon thereafter. Aug 15, 2012 Aug 10, 2012 Mr. Whitmarsh briefs Deputy Minister to the Premier John Dyble. Mr. Whitmarsh begins holding Friday meetings with members of the Ministry of Health investigation team, senior executives, Government Communications and Public Engagement, and the Public Service Agency. Aug 27, 2012 Aug 28, 2012 Aug 31, 2012 Sep 17, 2012 Lead investigator and Investigation and Forensic Unit Director meet with RCMP. Co-op student Roderick MacIsaac suspended from his employment. Robert Hart suspended from his employment. Ministry of Health investigation team discovers third possible privacy breach. purposes only, and as such, data is not to be used for any other purpose without appropriate approvals in place. The email warned that employees who contravene these rules may lose their data access rights, and the ministry The lead investigator contacted the Office of the Informa- may take “further disciplinary action up to and including tion and Privacy Commissioner (OIPC) on July 13, 2012, to termination.” notify it that the Ministry of Health was conducting an On August 3, 2012 the lead investigator discovered an investigation into contracting practices and that, as part email describing a possible privacy breach involving Mr. of this investigation, they had possibly uncovered data Hamdi copying personally identifiable data to a flash drive breaches. It is unclear what privacy breaches the lead for co-op student Roderick MacIsaac’s use. The lead ininvestigator had in mind at that time since the breaches vestigator believed that Mr. MacIsaac, a co-op student, that were ultimately reported to the OIPC had not yet been intended to use this data for his PhD. At some point in discovered. At the request of Lindsay Kislock, Assistant the following two weeks, the investigation team discovDeputy Minister of Health Sector Information Manageered another email from 2010 containing a reference to ment and Information Technology, the lead investigator a possible second breach. This email was between Mr. met with two staff members from the OIPC on July 19, Hamdi and Dr. William Warburton, who was a ministry 2012, and continued to update the office about the mincontractor at the time. istry investigation throughout that summer. The discovery of these emails, along with other emails On August 1, 2012, the same day that Ramsay Hamdi and about data that the investigators viewed as suspicious, David Scott were suspended, Ms. Kislock sent an email shifted the investigation’s focus from a general conto all ministry employees stating that ministry data is procern about administrative health data use by external vided to business areas of the ministry for operational 8.2  Possible Privacy Breaches Discovered CHAPTER 8 researchers to specific possible privacy breaches involving personally identifiable data. in executive levels of the ministry that perhaps such problems were the result of existing practices and processes rather than intentional individual wrongdoing. These two possible privacy breaches were a factor in three of the employment termination decisions, as we This was illustrated by a proposed “data amnesty” email will discuss in Chapter 9. They were also a factor in the sent by Ms. Kislock to Mr. Whitmarsh and Associate Deptiming of the dismissals, the broad-based data access sus- uty Minister Sandra Carroll on September 4, 2012. The pensions that occurred in the summer and fall of 2012, and email discussed the lack of a formal process in terms of decisions the ministry made about contract suspensions using and releasing Ministry of Health data. Ms. Kislock and terminations. A number of people we interviewed described how in her first six months on the job, she was cited three possible privacy breaches as the basis for the inundated with complaints from external researchers data access suspensions, when in fact a number of people about wait times for data. She described plans to improve had their data access suspended prior to the discovery of procedures around the use of data, particularly in light of the possible breaches. A number of the people that we some recent legislative changes. She concluded the email: interviewed thought that the privacy breaches involved I think it would be advisable to understand what many more individuals than was actually the case. The data other divisions have been releasing and to discovery of the possible privacy breaches also contributwho. Post terminations this week, I recommend ed to the investigation team’s larger concern that ministry that we announce an amnesty period and task data was being sold. Branches/Divisions to come clean on previous The belief that the investigation had uncovered serious data release practices. We can then use this inprivacy breaches was a significant motivating factor in the formation to determine if we have the appropriate decision to make a public statement. Then-Deputy Minisdata related activities in the right Division. I think the major data concerns from this investigation ter of GCPE, Athana Mentzelopoulos, gave evidence that she thought this was the main issue in September 2012, centre from staff inappropriately using their data and explained why government needed to be proactive, access, and lack of clarity on the governance of complete and transparent in its communications. She said: data stewardship in the Ministry. The easiest way to provide clarity is to task one division with all The [issue] that I was preoccupied with was the data release responsibilities. I believe this should notion that there had been a serious data breach, be HSIMIT. 1 and that the health information of potentially millions of British Columbians had been compromised … I personally expected that people were going to be furious and they were going to need to be reassured. Around September 17, 2012, the ministry investigation team discovered a third possible privacy breach. It involved Mr. Hamdi providing personally identifiable data on a flash drive to Mark Isaacs, a ministry contractor. We discuss the three privacy breaches in Chapter 10. 8.2.1  Proposed “Data Amnesty” Despite the significant concern in the Ministry of Health and elsewhere in government about the possible privacy breaches, there was, at the same time, some recognition 1 Ms. Kislock described her thinking behind the email in her interview with us. She told us she understood that: … the activities over the summer would have made people nervous … People didn’t know, like, they didn’t know what the rules were anymore and they were afraid that maybe they broke the rules. So, you know, if you just said, “It’s okay,” “Tell us what you’ve done” or “what you’re doing,” and then we could address it. That was my idea. This quite sensible advice was not followed and no amnesty was put in place. Moreover, no one considered at the time whether the idea of a “data amnesty” should apply to the employees who were about to be fired for, HSIMIT stands for the Health Sector Information Management and Information Technology Division of the Ministry of Health. 127 128 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS allegedly, not following proper processes with respect to data. On September 19, 2012, Ms. Kislock sent an email to all ministry staff about dealing with “sensitive and personally identifiable data,” defined as any data with the high potential for re-identification, including de-identified, anonymized and aggregate data. The email included a list of data security principles that staff were required to follow and stated that her division would be organizing staff information sessions in the following weeks. It made no reference to a data amnesty. A concern has been raised with the Ministry of Health with respect to how research and contracts are managed in the Pharmaceuticals Division. In response to this complaint, an investigation has been undertaken… your role in research and data access will be included in this process. Effectively [sic] immediately, and for the duration of this investigation, the Ministry of Health is revoking your access to ministry data. Dr. Davidson told us that she met with two investigators, and wanted to know what evidence they had to support the data suspension. She told us the investigators showed some emails and suggested that Mr. Hamdi “had been 8.3  Further Data and Employment her offered money” in relation to data but that “they made it Suspensions clear that they didn’t know that that was the case. That there was going to be a further investigation”. She told As we described in Chapter 7, soon after starting their us that she “felt like at that time they had enough to go work, the investigators had come to believe that employon, at least to have suspicion”: ees in the Pharmaceutical Services Division (PSD) were I had them come and tell me what was the issue, working in an organized way to use administrative health because I couldn’t support doing that unless I was data for their own benefit.2 The investigators identified told why … there was questions about what he additional potential individuals to be investigated near the was doing with data and they needed to invesend of June, primarily because of their connections with tigate further, and in the meantime they were employees in the PSD. cutting off his access … They had a bunch of The lead investigator had been granted access to these emails. They said they needed to do further work, additional employees’ emails on the basis that it was neand I was fine with – I trusted the process at cessary for her review. Investigators searched employees’ that point, that it would be done. And I reassured emails looking for evidence of wrongdoing. In some cases, Ramsay when I talked to him that the due process this included reviewing emails from up to 10 years earlier. would be followed and he would be, you know, As described above, in the course of their email review, protected by the process. the investigators discovered what they suspected were privacy breaches, unauthorized use and sharing of data On August 1, 2012, three working days later, the ministry and other misconduct by employees who were not identi- suspended Mr. Hamdi and his colleague David Scott from fied in the complaint to the Office of the Auditor General. their employment without pay. Their suspensions brought These findings reinforced their concerns that data was the total number of employees suspended to five. Like Mr. Hamdi, Mr. Scott worked in the Planning and Innovation leaving the ministry in an uncontrolled manner. Division of the ministry. He was a senior research advisor. On July 27, 2012, Heather Davidson, Assistant Deputy Both employees worked extensively with administrative Minister of Planning and Innovation, on the advice of health data. Neither of these individuals had been named the investigators, suspended the data access of Ramsay in the complaint to the Office of the Auditor General that Hamdi, a senior economist in the Planning and Innovation prompted the investigation. As noted above, their conduct Division. The decision had first been discussed three days came under review because of their ties to employees in earlier, on July 24. The stated reason for the suspension, PSD. This led to investigators reviewing Mr. Hamdi and as described in the letter to Mr. Hamdi, was: Mr. Scott’s email records. On July 31, following a review 2 Internal Review Report: Ministry of Health, Pharmaceutical Services Division, Research and Evidence Development, draft v.1, 6 July 2012, 5. CHAPTER 8 of their emails relating to data access which the inves- and on learning that Mr. Hamdi had provided Mr. MacIsaac tigators viewed as incriminating, the recommendation with administrative health data linked to federal Canadian was made that the ministry suspend their employment Community Health Survey data on a flash drive, the invespending investigation, resulting in their suspensions the tigation team had become suspicious of Mr. MacIsaac’s following day. data access and use, particularly as he was concurrently The ministry suspended these individuals before con- a PhD student at the University of Victoria. ducting any interviews with them. They were interviewed more than two weeks after their employment suspensions. Their direct supervisors were not interviewed until the end of August. During the interview, the lead investigator asked Mr. MacIsaac to sign a declaration stating that he had no “government information” either at home, in electronic format, or online. The PSA investigator cautioned him that if he signed it, and it turned out to be incorrect, he could face “potential criminal charges”. Mr. MacIsaac told the investigators that he would sign the declaration, and provide it to the lead investigator the following day, but first he wanted to review the information in his possession and make a list of the material he had. He told the investigators that he was “entirely shaken”. As with the three employees suspended in mid-July, Mr. Scott’s and Mr. Hamdi’s suspension letters gave no details about the subject matter of the investigation or the specific allegations against them. Unlike with the excluded employees, the letters did not promise Mr. Hamdi or Mr. Scott an opportunity to respond to any investigative findings or recommendations about their employment. The At the end of the interview, the investigators handed Mr. identical form letters to both employees stated: MacIsaac a letter that suspended his employment pending This letter is to advise you that you are hereby investigation. The text of the letter was the same as those suspended without pay pending an investigation given to Mr. Hamdi and Mr. Scott. When Mr. MacIsaac into allegations of workplace misconduct. asked in the interview why he was being suspended, an It is our intention to complete this process as exinvestigator said: peditiously as possible and we shall advise you We are very concerned about the use and disaccordingly. It will be necessary to interview you closure and sharing of this data. Based on our on this matter and we will contact you in the near investigation thus far, we have a very real concern future in this regard. about where this data is being stored, how it is You are directed not to communicate on this being used and so we will confirm that through matter with anyone other than your BCGEU staff further investigation. The only thing that I would representative, which includes external stakeadd in terms of running commentary, Roderick, holders. You are further directed not to attend is that many of your answers today have been the workplace until otherwise requested by your very evasive, your unwillingness to sign the data Assistant Deputy Minister. disclosure statement, the declaration that was The letters were signed by Nick Grant, who was Acting put in front of you, all of these things add further Assistant Deputy Minister on behalf of Dr. Davidson who to our concerns, so at this time we are moving to was, at that time, away from the office. Mr. Hamdi filed a suspension … we would ask that you leave the grievance disputing his suspension without pay on August building as soon as possible. 2, 2012. Mr. MacIsaac’s suspension letter was signed by the Stra- On Tuesday, August 28, 2012, four investigators inter- tegic Human Resources Manager on the investigation viewed Roderick MacIsaac for more than two hours. Mr. team. Ms. Walman was on vacation at the time. MacIsaac was a co-op student in PSD who was due to On Friday August 31, 2012 the investigation team intercomplete his term at the end of that week. He reported viewed Bob Hart, Director of Data Access and Stewardto Dr. Rebecca Warburton, who by this time had been ship. Mr. Hart was the direct supervisor of the employee suspended for over a month. Through its review of email, 129 130 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS who had made the original complaint about data handling an excluded employee, withholding his pay during his in the ministry. Throughout the interview, the investigators suspension was unreasonable on the same basis as the challenged Mr. Hart on whether he should have done more suspensions of the other excluded employees – namely, to respond to the complainant’s concerns. As with Mr. that it was not authorized by legislation or the terms of MacIsaac, the investigators provided Mr. Hart a letter of his employee contract and was therefore contrary to law suspension without pay at the end of the interview. The (see Chapter 7). letter stated in part: The other three employees (Mr. Hamdi, Mr. Scott and As a result of our information gathering and interMr. MacIsaac) suspended during this time frame were views with yourself and others significant conmembers of the BC Government and Service Employees’ cerns became apparent to the employer. These Union (BCGEU) and the terms of their employment were concerns included the inappropriate provision of governed by the collective agreement in place at the time. health data access and methods by which conIn the unionized context, the general rule is that an emtracts are being awarded. ployer must act reasonably in suspending an employee Mr. Hart’s letter was prepared and signed by a member of pending investigation. In one case which addressed the the investigation team. Ms. Kislock, who was Mr. Hart’s issue, an arbitrator stated in part, “if an employee is susAssistant Deputy Minister, was on vacation at the time pended based on information that is objectively unreliable, it cannot be said that the Employer acted reasonably.”3 The and learned of Mr. Hart’s suspension after the fact. arbitrator confirmed that the employer “must establish reasonable grounds for the suspension by showing the em8.3.1  Analysis: Data Suspensions and ployee’s continued presence in the workplace constituted Employment Suspension Decisions 4 Dr. Davidson made the decision to suspend Mr. Hamdi’s a reasonably serious and immediate risk.” This decision 5 data access based on the information the investigators was later upheld by the Labour Relations Board on review. relayed to her about their concerns about Mr. Hamdi’s data use. The investigators showed her an email that they viewed as suspicious; the ministry’s concerns about the email eventually formed one of the grounds for Mr. Hamdi’s dismissal. Dr. Davidson acted reasonably in requiring the investigators to explain to her the evidentiary basis for their concern about Mr. Hamdi’s data access. Given the low threshold for assessing whether there is a suspected privacy breach, the information that Dr. Davidson reviewed was sufficient to ground a reasonable belief that Mr. Hamdi may have used data improperly. We note that, as discussed in Chapter 9, the investigators’ concerns in relation to the email were not borne out. Nonetheless, given what was known at the time, Dr. Davidson’s decision to suspend Mr. Hamdi’s access pending further investigation was reasonable. 8.3.1.1  Unfair Process The fact that Mr. MacIsaac and Mr. Hart were suspended immediately at the conclusion of what should have been strictly fact-finding interviews raises two serious questions about the fairness of the process leading to the suspensions. The first question is whether the investigators conducting the interview were acting outside the scope of their authority as fact-finders. In Mr. Hart’s and Mr. MacIsaac’s case, the suspension letters were signed by the investigator responsible for strategic human resources management in the ministry, even though they were purportedly from their respective Assistant Deputy Ministers, Ms. Kislock and Barbara Walman, Assistant Deputy Minister of the Pharmaceutical Services Division. With respect to at least one of these letters, neither the employee’s supervisor In relation to the decision to suspend Mr. Hart’s em- nor his Assistant Deputy Minister was consulted prior to ployment, we determined that because Mr. Hart was his suspension. Both Ms. Kislock and Ms. Walman were 3 British Columbia v. British Columbia Government and Service Employees’ Union, [2002] B.C.C.A.A.A. No. 395 at para 42. 4 British Columbia v. British Columbia Government and Service Employees’ Union, [2002] B.C.C.A.A.A. No. 395 at para 45. 5 Re British Columbia v. British Columbia Government and Service Employees’ Union, [2003] B.C.L.R.B.D. No. 13. CHAPTER 8 on vacation at the time of these suspensions, and were told only after the fact. In the case of Mr. MacIsaac, the suspension was particularly punitive given that his co-op term was ending in a few days. employees without pay was consistent with Public Service Agency (PSA) practice, it was unreasonable in the circumstances and in the case of Mr. Hart, an excluded employee, contrary to law. The second question is whether the investigators who were conducting the interviews were predisposed to 8.4  Deputy Minister’s Involvement find misconduct by Mr. MacIsaac and Mr. Hart before the interviews began and as a result disregarded exculpatory As we described in Chapter 7, the ministry’s decision to evidence obtained during the interviews. The investigative notify the first three employees of their suspensions (Dr. team should have considered, with open minds, the evi- Maclure, Dr. R. Warburton and Mr. Mattson) occurred dence that Mr. Hart and Mr. MacIsaac provided, and con- while Mr. Whitmarsh was away. Ms. McKnight, who was sidered whether the employees’ evidence would explain acting for Mr. Whitmarsh during his vacation, directed the or contextualize the email evidence that the investigators team to assemble the evidence within two weeks so that a final decision could be made quickly. Ms. McKnight also had previously obtained. told the team to focus on putting together information on Both Mr. Hamdi and Mr. Scott were suspended before these three employees and to cease conducting further having an opportunity to respond to any allegations. They interviews on new matters. were suspended for more than two weeks before they were interviewed about the team’s concerns. Even in This direction from Ms. McKnight caused concern among those interviews, the investigators were not explicit in the investigation team. The investigation team began to their description of the allegations. As a result, Mr. Hamdi suspect that Ms. McKnight might be involved in the matand Mr. Scott were still uncertain as to the reason for their ters they were investigating. One member of the team contacted Lynda Tarras, then-Deputy Minister of the PSA, suspension after their initial interviews. with concerns that Ms. McKnight was attempting to shut 8.3.1.2  Failure to Establish Reasonable Basis for down the investigation. Ms. Tarras, in turn, contacted Mr. Suspensions Whitmarsh to discuss the concerns of the investigative In addition to questions about the fairness of the process, team. Mr. Whitmarsh told her that he would look into it. the suspensions were unreasonable because they were When Mr. Whitmarsh returned from vacation on July 30, based on insufficient evidence. None of the evidence we 2012, he began to learn about the investigation. He would reviewed, for any of the employees, met the ministry’s remove Ms. McKnight from the investigation when she reburden to “establish reasonable grounds for the suspenturned from her vacation. He knew that Ms. McKnight had sion by showing the employee’s continued presence in previous responsibility for the data area of the ministry the workplace constituted a reasonably serious and imand questioned whether she was in charge when “the mediate risk.”6 The suspension letters did not indicate that train veered off the tracks in terms of custody of data.” For the ministry was of the view that the employees posed a this reason, he was cautious about her ongoing involveserious, immediate risk to government, let alone articulate ment. Similarly, he minimized any further involvement of what the risk might be. Manjit Sidhu, Assistant Deputy Minister of Finance and Further, there was no consideration given to any measures Corporate Services and the Ministry of Health’s Executive less intrusive than suspensions which could have miti- Financial Officer, given his responsibility for contracting. gated any perceived risk to the ministry. The ministry ought At the time, Mr. Whitmarsh did not know whether either to have considered whether, for example, suspending the of these two senior executives were responsible for any employees’ data access sufficiently mitigated any risk. wrongdoing. This marked the end of the period that the No consideration was given to whether the employees executive sponsorship in the May 31, 2012 terms of refercould fulfill different roles within the ministry while the ence effectively applied to the investigation. Ms. Walman investigation was ongoing. In addition, while suspending and Ms. Kislock were on vacation and the team was no 6 British Columbia v. British Columbia Government and Service Employees’ Union, [2002] B.C.C.A.A.A. No. 395 at para 45. 131 132 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS longer reporting to them. Ms. Kislock remembers being Consistent with his leadership style, Mr. Whitmarsh began formally removed from the investigation, because the com- to assume a greater role in the investigation. Beginning plainant made a complaint about her. Mr. Whitmarsh told on August 10, 2012, he arranged Friday weekly meetings us that he was not directing the investigation, but only to discuss the investigation and the team’s findings. overseeing it at a weekly meeting. No one we spoke with The investigation team attended these meetings. Also assumed responsibility for the investigation at this stage, present, when available, were senior executives from but the evidence of the investigators we spoke with was the ministry, including Sandra Carroll (Associate Deputy that they understood that Mr. Whitmarsh was in charge. Minister and Chief Operating Officer), Lindsay Kislock Members of the investigation team saw Mr. Whitmarsh (Assistant Deputy Minister, Health Sector Information as a strong, decisive leader. “At the beginning I was very Management and Information Technology), and Barbara impressed with his leadership style,” said the PSA inves- Walman (Assistant Deputy Minister, Pharmaceutical Sertigator. “It was quite refreshing to have him come in and vices Division) . As noted above, both Mr. Sidhu and Ms. be … I think very legitimately upset that this might be McKnight were excluded because they had senior roles going on in his ministry, and that he … we weren’t going at the ministry during the time of the alleged wrongdoing. to stop until we had figured out what, you know, what was The ministry’s GCPE staff also attended the meetings, as going on,” she said. Another investigation team member did Ms. Tarras. After Ms. Tarras left for vacation on August 22, 2012, the Assistant Deputy Minister for the PSA described him as “a very quick study”: took her place. No detailed minutes or lists of attendees You could give him a huge binder of stuff and he were kept. was able to drill through it and get to the salient points right away. Didn’t need a lot of support in terms of decision making. You know, didn’t require a lot of time with information. … He was a strong leader. Many executives at the ministry had a similar view of their former deputy. Mr. Sidhu, the ministry’s Executive Financial Officer told us: He had a very directive – call it a very directive leadership style … He was very good at managing issues. You know, he would deal with things quickly, and he wasn’t so good at kind of, what I would call, long-term strategy. But, yeah, he was good at managing issues. I could take issues to him and get decisions very quickly. Another Assistant Deputy Minister described him as “an amazing leader… he’s energetic, he’s decisive, he’s great with people. He’s hardworking.” Other executives saw the same attributes, but in a more neutral light. “He was one of those individuals that was – because he was intelligent, he was quick to do things. He’d like make a decision and move on.” Mr. Whitmarsh told us that when he returned from vacation at the end of July he observed that: … there was no organization to what [the investigators] were doing… there seemed to be this little, you know, band of people wandering around interviewing people and I was just concerned, partly about scope, and partly about focus, plus we had these timelines burning on the suspensions without pay. In his view, matters needed to be brought under control quickly and decisively. He said: I want to be clear, I never told them to interview anybody, I never suggested what they should look into, I never told them a single thing they should ask, I suggested they get on with it and get it done, and complete their interview process, and get PSA to a point of recommendation but absolutely not in terms of … whether another interview was, whether it was necessary to talk to someone else, or gather a piece of information, absolutely no specifics that I would define as running an investigation. Mr. Whitmarsh acknowledged, however, that by virtue of his position others, likely perceived him as directing CHAPTER 8 the investigation, even if that was not his intention. This direction is illustrated by his decision to organize the weekly meetings to discuss the investigation. It is clear that others involved in the investigation believed that Mr. Whitmarsh was “calling the shots” from this point on. For example, the GCPE Communications Manager described him as, “hands-on … the day-to-day kind of guy on this one.” He told us, “it was his investigation to kind of move forward and to kind of make decisions on.” The lead investigator told us that she recalled that Mr. Whitmarsh directed that the interviews of the employees take place before any interviews of contractors and that he wanted the interviews of the suspended employees concluded before any public announcement. Likewise, the ministry’s Communications Director described Mr. Whitmarsh as “very hands-on” regarding this issue, which was different from Mr. Whitmarsh’s usual approach to communications. A senior PSA executive recalled that when he first attended the meetings, the issue was being characterized as the “biggest and most sensitive data breach ever … what could be worse from a political standpoint?” He recalled that Mr. Whitmarsh was “very definitely running the meetings … and making it clear that he was in charge.” 8.4.1  Minister of Health Is Briefed On August 3, 2012, Mr. Whitmarsh briefed then-Minister of Health Michael de Jong about the investigation. In a draft letter summarizing the meeting, Mr. Whitmarsh wrote: This is further to our discussion on August 3, 2012 when I briefed you on an investigation that was actively under way under my direction. This investigation into inappropriate data access arrangements and intellectual property infringements; irregular procurement, contracting and research grant practices; and standards of conduct policy conflicts and preferential treatment in employee-contractor relations within the Ministry of Health (primarily its Pharmaceutical Services Division – PSD) commenced after our being contacted by the Office of the Auditor General. The letter further noted that Minister de Jong had directed Mr. Whitmarsh to “take all necessary actions to identify and address the risk, ensure compliance with government policies and pursue employee disciplinary actions if warranted.” Minister de Jong remembered being told that a serious data breach had taken place, which was someMost of the Assistant Deputy Ministers who had been thing taken seriously by the government. Mr. Whitmarsh involved in this matter were away through much of August, told us he warned the minister that this “had the potential while Mr. Whitmarsh had just returned from vacation in to be a really significant issue” both in terms of privacy July.7 From this perspective, it is understandable why he and contracting. became more involved in the investigation, as many of the other senior executives were not available to manage the 8.4.2  The Deputy Minister to the Premier Is investigation to the same extent he was. Mr. Whitmarsh Briefed was also sensitive to the potential impact from public John Dyble, the then-Deputy Minister to the Premier and disclosure of a privacy breach. Accordingly, he began Head of the Public Service, recalled that he first learned exercising greater oversight of the investigation. of the investigation from Mr. Whitmarsh, who described Once he became involved, Mr. Whitmarsh directed the the issue as a “data breach.” He said Mr. Whitmarsh told lead investigator to focus on the seriousness of the al- him that the team was still trying to determine what hapleged wrongdoing and directed the PSA investigator to pened and the scale of the breach. He thought this initial provide advice on the appropriate employee discipline. Mr. discussion took place in May 2012. Mr. Whitmarsh was Whitmarsh told us he was reliant on the investigators for aware of the complaint by at least the third week of May the information on which he based his decisions, and on 2012 and so it is likely this discussion occurred in the latter the PSA for guidance and support in the human resources half of May 2012. investigation and decision-making process. On August 15, 2012, Mr. Whitmarsh met with Mr. Dyble to brief him on the investigation. Ms. Tarras, head of the 7 See Appendix G for a listing of the Ministry of Health executive vacations in August and early September 2012. 133 134 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS Public Service Agency, attended the briefing. According to there for an HR related matter. So I would have expected Ms. Tarras, her attendance was at the invitation of both Lynda to be there if there was an HR investigation going Mr. Dyble and Mr. Whitmarsh. Mr. Whitmarsh explained on and I was being briefed on it.” that he thought it was important to have her human re- Mr. Dyble said he “expressed…frustration” with the Resources expertise in terms of assessing “the appropriate lationship Web because “I couldn’t figure out what it was HR impacts” of what the investigation had found. trying to do… it made no sense to me.” He said he made All three attendees confirmed that the only document Mr. it quite clear at the meeting that he did not like the diaWhitmarsh brought to the meeting was the Relationship gram. He could not see how it demonstrated conflicts of Web, which he used to illustrate the complexity of the interest or how individuals may have personally benefited. relationships and the problems arising from the ministry’s He said Mr. Whitmarsh told him the investigation team contracting processes. In explaining his rationale for bring- had obtained evidence through a review of emails. Mr. ing this document to the meeting, Mr. Whitmarsh said, “it Dyble also recalled that he asked Mr. Whitmarsh about wasn’t really to brief him so much as that we’d had sev- the motives behind the alleged privacy breach; he said eral kind of hallway discussions … at the end of [Deputy that in the absence of clear information about nefarious Ministers’ Council] about this,” and “he’d been curious motives he was “worried” and told Mr. Whitmarsh to conabout the involvement of the Comptroller General and I sider the motivation for any privacy breaches. Mr. Dyble said part of that’s because … the web of relationships in told us he understood that the purpose of the briefing was this is complicated.” Mr. Whitmarsh told us that he “didn’t to provide interim information and that nothing had yet make any representations at those meetings with respect been finalized. In his view, the matter was clearly for Mr. to rights and wrongs and what was going on, I just said Whitmarsh to deal with. look, here’s the complexity of it, this is why we’ve handed Ms. Tarras recalled that Mr. Whitmarsh “said very clearly, it off to the Comptroller General.” ‘John, you need to let me manage this. This is my job.’” Ms. Because he was Mr. Whitmarsh’s immediate predecessor as Deputy Minister of Health, Mr. Dyble was familiar with the work at the ministry.8 In the meeting, he questioned the veracity of the information presented. Ms. Tarras told us that Mr. Dyble appeared “not necessarily convinced” that the Relationship Web was accurate. Ms. Tarras said Mr. Whitmarsh defended his approach and even suggested that Mr. Dyble might be implicated in the problems uncovered, given his past role. According to Ms. Tarras, Mr. Whitmarsh was concerned that Mr. Dyble might be “conflicted because… a lot of these practices were created” when Mr. Dyble was Deputy Minister of Health. This was similar to the position Mr. Whitmarsh had already taken with respect to Mr. Sidhu and Ms. McKnight. Tarras told us that, by the end of the meeting, “It’s clear to me that John agrees that he’s going to trust Graham to work this through. He’s not happy because this is clearly causing him grief in his world and he’s concerned about it, but he understands that this is Graham’s role and Graham is going to manage it.” Mr. Dyble remembered Mr. Whitmarsh telling him that “I might be in a conflict so I should stay away.” He told us that he did not want to get “too close” to the investigation because “I really was trying to create a wall on HR issues between the public service and the Premier.” Following the meeting, Mr. Dyble told others in his office that he could not make sense of the Relationship Web used to brief him on the investigation. Mr. Dyble’s principal recollection of the meeting was hearing about a privacy breach. He did not recall talking about At some point after his meeting with Mr. Whitmarsh and the human resources consequences, only noting that before the employee terminations on September 6, 2012 “down the road that would become an issue.” However, Mr. Dyble briefed Premier Christy Clark on the issue. He it was clear to him that such consequences were likely recalled mentioning it to her as an issue which might poslooming, “because the Public Service Agency would be sibly come up. However, he told us that he kept the briefing 8 John Dyble was appointed Deputy Minister, Ministry of Health Services (as it was then called) on June 1, 2009, and continued in that role until March 14, 2011. See Order in Council 277/2009, 1 June 2009, and Order in Council 69/2011, 14 March 2011. CHAPTER 8 high level and focused on the alleged privacy breach, on the basis that any related human resources issues were a public service matter in which politicians should not get involved. He recalled the discussion as follows: I mentioned that we had a data breach to the Premier and that there was an investigation going on – and that is the level I would have dealt with the Premier on it. Because there was a potential human resource role in here – I would have kept her away from it … whether or not you believe that’s the right thing to do but I believe that the public service should – the politicians shouldn’t get involved in human resources. Most of what I would have told her about was the data breach ‘cause that’s where the politics went in. Premier Clark did not have a specific recollection of being briefed on the matter prior to the terminations. 8.4.3  The Acting Minister of Health Is Briefed Minister of Health Michael de Jong was on vacation from August 15 to September 2, 2012. On August 16, 2012, Mr. Whitmarsh briefed Minister George Abbott, who was the designated Acting Minister of Health while Minister de Jong was away. 8.5  Second Round of Employee Interviews At the beginning of August, the investigation team decided it needed to conduct more interviews and review more emails. Between August 1 and October 19, 2012, the team interviewed over 25 different individuals. Three individuals were each interviewed three times during this period, and one individual was interviewed four times. In total, the investigation team completed 38 interviews in this time frame. Because the majority of the team’s formal interviews were conducted in this period, our observations and analysis in relation to the formal interviews is set out in the following sections. We note, however, that the investigation team continued to interview ministry employees until the end of February 2013. Our analysis of the approach taken during the interviews as set out below is equally applicable to those later interviews. Most of the second round interviews were audio recorded and in some cases, the audio was transcribed.9 The PSA maintained the recordings and transcriptions of the interviews because the interviews were considered part of their role in relation to the ministry’s investigation and the PSA investigator was to lead them. For reasons that the PSA could not explain to us, some key interviews – particularly with supervisors of the individuals who were later fired – were not audio recorded and in some cases no notes were kept; in some cases where notes existed, they were minimal or difficult to decipher. Mr. Whitmarsh was concerned about the possibility that the suspensions and the investigation would be leaked publicly, and this was the apparent reason for the briefing. The telephone briefing lasted for approximately 15 minutes, sufficient for Mr. Whitmarsh to provide Minister Abbott with only the broad outlines of the investigation: serious allegations had been made by a reliable source about 8.5.1  Interviewers’ Roles and Process inappropriate disclosure of personal information for re- The lead investigator, the PSA investigator and sometimes search purposes. According to Mr. Abbott, Mr. Whitmarsh other members of the investigation team conducted these sought no direction from him as to the next steps in the second round interviews. Based on our review of the reinvestigation, and Mr. Abbott had no further involvement. cords, it is clear that the PSA investigator and the lead investigator were in charge of the interview process and Following this round of briefings, there was no further asked the majority of the questions. They did not maininvolvement from the Minister of Health until just prior tain clear roles in terms of subject matter when asking to the public announcement on September 6, 2012. That questions. It was just as likely for the PSA investigator involvement is discussed in Chapter 9. to ask questions around data, which she told us was not her area of expertise, as it was for the lead investigator 9 Based on our review of the audio recordings and the transcribed versions prepared for the Ministry of Health, some of the transcripts were not fully accurate. 135 136 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS to ask questions around standards of conduct, which she told us was the role of the PSA investigator. The employees who were suspended on July 17, 2012 (Dr. Maclure, Dr. R. Warburton and Mr. Mattson) sought legal advice and asked the ministry to disclose informaWith respect to the employees who were eventually terminated or disciplined, the PSA and the investigators tion about the factual basis for their suspensions and the generally offered the employees the opportunity to have nature of the allegations against them. They asked for this representation at the interviews. Most of the BCGEU information so that they could understand the ministry’s member employees were represented by union shop stew- concerns and properly participate in interviews with the ards, and most of the excluded staff were represented by investigation team. counsel or representatives of the BC Excluded Employees’ 8.5.2.1.1  Legal Advice about Disclosure to Suspended Association. Employees In the period between late July and October 2012, the PSA 8.5.2  Analysis: Conduct of Interviews and the Ministry of Health obtained legal advice about We reviewed each of the interview transcripts and the the risks of not providing the employees with information investigators’ handwritten notes. We listened to the audio about the allegations against them. The chronology of recordings. Overall, we agree with Ms. Marcia McNeil’s legal advice on this issue is described below. findings about the interview process that she described in her December 19, 2014, report. We recognize that it On July 26, 2012, lawyers from the Legal Services Branch can be difficult to conduct interviews, particularly in an (LSB) recommended that the PSA provide all of the eminvestigation of this nature, where the subject matter is ployees under investigation with particulars of the allegcomplicated. We did not find every part of every interview ations against them, as well as any critical documents, in problematic; some interviews were productive and appro- advance of their interviews. The PSA disagreed with this priate. Through our investigation, we identified three main advice. The PSA investigator told the employment lawyer challenges with how the investigation team conducted that she had discussed the matter with the PSA Director, and that the PSA’s firm practice was not to provide any the second round of interviews: disclosure of specific information in advance of employee 1. The investigation team provided insufficient notice interviews. We note that providing little in the way of disof allegations and disclosure of particulars and docu- closure to employees under investigation was consistent ments prior to the interviews. with the PSA practice at the time. 2. The investigators who conducted the interviews dem- The same day, the employment lawyer and the PSA Direconstrated a lack of objectivity. They often started from tor had a call to discuss the investigation and the advice the premise that wrongdoing had occurred, and as a relating to particulars. On that call, the PSA Director inresult they had closed minds. formed counsel that in addition to the employee relations 3. The interview style and tone lacked neutrality and was sometimes aggressive and argumentative. investigation, the Office of the Comptroller General and the Office of the Chief Information Officer were also inTaken together, these issues negatively affected the ef- vestigating, and that those bodies were considering how fectiveness of the interviews and therefore the investi- soon to bring in the police. The PSA Director told the gation as a whole. We discuss each of these challenges employment lawyer that those bodies did not want to provide particulars of the allegations to the employees. in the following sections. The PSA Director told the employment lawyer that this 8.5.2.1  Insufficient Notice and Disclosure case required a “customized” approach. One issue that arose in relation to the second round of On July 31, 2012, the employment lawyer obtained ininterviews was whether the investigation team should structions to respond to her request for particulars, and provide employees it sought to interview with information to advise Dr. R. Warburton’s counsel that the province about the allegations against them and the documents was concerned that she “may have engaged in activities the investigators relied on to support those allegations. CHAPTER 8 which are in conflict of interest and a breach of fiduciary duty to her employer.” On August 2, 2012, counsel for Dr. R. Warburton wrote to the employment lawyer and raised concerns regarding the manner in which the investigation was being carried out, principally the ministry’s continued refusal to provide particulars about the allegations against Dr. R. Warburton. The letter indicated that the province’s statements about possible conflicts of interest and breaches of fiduciary duty were vague and did not allow Dr. R. Warburton to respond in a meaningful way to the concerns. The letter sought further information about the nature of the concerns as well as copies of the documents the PSA investigator was relying on. The letter raised concerns about the neutrality of the PSA investigator and concerns about whether the investigators had sufficient expertise in contracting and data access. particulars on the scope of the investigation, including the period of time under review, the health data that was allegedly misused and how it was misused the contracts that were the subject of the investigation and what improprieties were alleged in relation to the contracts policies and procedures that applied in the circumstances any documents that the investigators intended to put to Dr. Maclure in the interview The lawyer also advised, however, that there was no requirement to comply with Dr. Maclure’s lawyer’s request for copies of the investigator’s notes. The lawyer recommended that the PSA provide particulars to Dr. R. Warburton’s lawyer as well, including any documents that would be put to her in an interview and copies of any relevant policies. On August 3, 2012, the employment lawyer again advised the PSA Director to provide Dr. R. Warburton with particu- The PSA Director proposed a meeting with the investilars and documents relating to the allegations in advance gation team and legal counsel to develop a strategy for of her next interview. The employment lawyer noted that responding to the employees’ counsel and providing par“without access to particulars or documents in this case it ticulars. The meeting took place on August 23, 2012. Four is difficult to advise as to how [to] minimize legal risk and lawyers from LSB attended the meeting, which comprised we want to ensure that we can do everything we can to two lawyers for the PSA, a lawyer for the Ministry of Health, and a civil litigation lawyer who had been asassist you here.” Dr. Maclure conveyed to the ministry his willingness to signed to the matter a few days before. At that meeting, participate in the investigative process but also requested the investigators gave the lawyers an overview of the alfurther information about the allegations against him. On legations relating to conflict of interest and misuse of data. August 2, 8 and 9, 2012, counsel for Dr. Maclure wrote On August 28 and 29, 2012, the employment lawyer obletters to the ministry noting the “complete lack” of par- tained instructions from the PSA Director and the lead ticulars in the suspension letter and seeking full particu- investigator to provide some more information to Dr. lars and related documents with respect to the alleged R. Warburton and Dr. Maclure, including references to specific contracts and general enclosures related to the misconduct in advance of Dr. Maclure’s interview. On August 16, 2012, the employment lawyer advised the province’s contracting and procurement processes. We PSA Director that without providing particulars to Dr. R. note that although this disclosure provided the employees Warburton and Dr. Maclure, it was doubtful that either with some information about the nature of the ministry’s employee would attend an interview. The lawyer advised concerns, it remained very general. that the failure to provide particulars could form a basis for On August 30, 2012, counsel for Dr. Maclure wrote to the individuals to claim that the investigation was flawed. advise that the province had still not provided all of the The lawyer recommended that the PSA provide the fol- particulars requested in previous correspondence. On September 4, 2012, the LSB employment lawyer obtained lowing particulars to counsel for Dr. Maclure: instructions from both the PSA Director and the lead investigator to reply that the province was not legally required to provide some of the information sought, and that 137 138 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS the province’s refusal to provide certain information did considered the ministry’s response to date insufficient. not mean that the investigation would not proceed fairly. This letter provided information to explain Dr. R. WarOn September 5, 2012 the employment lawyer wrote to burton’s actions in an attempt to pre-emptively respond counsel for Dr. Maclure declining to provide copies of the to the vague case against her. The employment lawyer balance of the materials requested. forwarded the email to the PSA Director and the lead On September 6, 2012, counsel for Dr. R. Warburton investigator and asked to discuss a response by phone. wrote to the employment lawyer indicating that given The employment lawyer emphasized that “a timely and the statements in the newspaper discussed in Chapter 9, comprehensive response is important, from a defensive the ministry should provide more information about the standpoint, given the likelihood of future litigation,” and allegations against Dr. R. Warburton, and the interview sought further instructions from her clients to respond: which was scheduled for that day should be postponed. The ministry agreed to postpone the interview to accommodate the request. On September 9, 2012, the employment lawyer told the PSA Director that if further particulars were not provided to Dr. R. Warburton in advance of her interview, it was likely that she would take the position that she had been constructively dismissed. As part of putting together a response to Dr. R. Warburton’s lawyer’s request for further information, the employment lawyer contacted a representative at the Office of the Comptroller General to try to determine the basis for the referral to the RCMP. On September 10, 2012, the Office of the Comptroller General sent an email indicating that the ministry had asked the Office to refer the matter to the RCMP on its behalf, and that this was done pursuant to the Core Policies and Procedures Manual. The employment lawyer replied that same day, seeking information about why the ministry had reason to believe the conduct was criminal in nature. No reply was received from the Office of the Comptroller General. Also on September 10, 2012, counsel for Dr. Maclure wrote to advise that Dr. Maclure was taking the position that, as a result of his suspension without pay, he had been constructively dismissed. Counsel wrote that the province had failed to provide proper disclosure of relevant documents and particulars and as a result it was no longer viable for Dr. Maclure to participate in the interview process. On September 11, 2012, counsel for Dr. R. Warburton wrote to raise concerns about the public statements made in the September news release and to follow up again on their request for details of the ministry’s allegations against Dr. R. Warburton. Counsel indicated that they [The lead investigator], in our last telephone call (wherein we discussed my conversation with [Dr. R. Warburton’s counsel] and her request that we provide an explanation for the referral to the police and also further particulars) you had expressed reluctance in terms of providing anything further. However, in light of this letter, please reconsider this and whether we can answer some of the questions posed. It would be helpful to respond to how Dr. Warburton’s conduct is at issue given her explanation here that she had no spending authority or data access, acted under the authority of others … and had no undisclosed external roles such that there was a conflict of interest. If the Employer does not respond now, [Dr. R. Warburton’s counsel] has put us on notice that the Employer will be obliged to respond in litigation – essentially this is the last chance to provide further particulars. Moreover, should the Employer fail to take any steps to respond, there is a significant chance that this will be relied upon in the litigation as a further basis for their claim that the Employer was unfair in its investigation and may result in additional significant damages. I am continuing to try to obtain information from the OCG to better understand the referral to the police. On September 12, 2012, the employment lawyer circulated a draft letter to Dr. R. Warburton’s counsel for review by representatives at the ministry and the PSA. She also copied representatives of the Office of the Comptroller General to seek their feedback as to the accuracy of her description of the basis for the referral to the RCMP. CHAPTER 8 The lead investigator and the Office of the Comptroller damages. He indicated that if government responded to General were not happy with the level of the detail the the request, the effect on the position of the Crown was draft letter provided with respect to the nature of the con- unknown but the response may assist with the perception cerns about Dr. R. Warburton. In briefing the Health and of basic fairness. Social Services group (HSS) Supervising Solicitor about Later that day, the employment lawyer obtained instructhe issue, however, the employment lawyer wrote: tions from the lead investigator and the PSA investigator … the level of particulars provided is not unusual to provide Dr. R. Warburton’s counsel with a letter congiven the nature of the complaints, the position taining further information regarding the concerns about held by the employee and the possible conseDr. R. Warburton’s conduct as well as a description of quences for her. Moreover, as we have repeatedly the basis for the referral to the RCMP. The employment advised the client – the failure to provide particulawyer also advised the lead investigator and the PSA lars may result in a finding by the Court that the Director that there was no legal obligation to provide Dr. R. Warburton with preliminary findings or to provide her investigation was unfair and potential damages. On September 13, 2012, the employment lawyers had a with the opportunity to respond before the ministry made conference call with the Deputy Attorney General Richard a decision about her employment. Fyfe, and the HSS lawyers. Mr. Fyfe indicated that he The interview with Dr. R. Warburton took place on Sephad spoken with Mr. Whitmarsh that day and that Mr. tember 14, 2012, with her counsel present, but it was Whitmarsh was concerned about the amount of informa- not completed, and a further interview was scheduled for tion that was going to be provided to Dr. R. Warburton. September 19. Following the September 14, 2012 interMr. Fyfe suggested that the employment lawyers consult view, counsel for Dr. R. Warburton requested copies of with a lawyer who had a criminal justice background to the documents that had been put to her client during the get his perspective on how the provision of particulars in interview. The employment lawyer told the lead Investithe employment investigation could impact a potential gator and the PSA Director “that it is not uncommon to RCMP investigation. provide such documents in advance of an interview so as to provide an individual with a full understanding of the The employment lawyer followed up later that day with an email to Mr. Fyfe that set out the legal basis for pro- particulars of the complaint against them” and obtained viding particulars to counsel for Dr. R. Warburton. The instructions to provide the documents to Dr. R. Warburemployment lawyer noted that although public law duties ton’s counsel on certain conditions. of procedural fairness do not apply in the context of a On September 18, 2012, the employment lawyer sent a private law employment relationship, significant damages letter to counsel for Dr. R. Warburton enclosing 54 pages can result from the manner of dismissal if the employ- of documents that the investigation team had put to her in er acts in bad faith or unfairly, and that aggravated and the September 14, 2012 interview. The documents mainpunitive damages have been awarded in cases where ly comprised emails with some attachments. Following there has been an unfair investigation, including where the receipt of the documents, counsel for Dr. R. Warburton employer has failed to provide particulars to an employee and the employment lawyer exchanged correspondence who has been called to an interview. Mr. Fyfe forwarded regarding the manner in which the investigation was the email setting out the employment lawyer’s advice to proceeding, with Dr. R. Warburton’s counsel seeking additional disclosure. The September 19 interview was Mr. Whitmarsh. One of the HSS lawyers on the call followed up with an- postponed as a result. other Legal Services Branch lawyer who had a background in criminal justice work. His advice was that failure to respond to Dr. R. Warburton’s request for particulars might assist the investigation but could lead to a perception of high-handed conduct by government and to aggravated On October 2, 2012, counsel for Dr. R. Warburton wrote to advise that unless the ministry provided access to, among other things, all relevant documents, Dr. R. Warburton would not meet again with the investigators. 139 140 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS On October 3, 2012, the employment lawyer sought instructions regarding a reply to the letter. The employment lawyer wrote to the PSA investigator and the lead investigator, noting that their instructions had consistently been to limit the information provided to Dr. R. Warburton. The employment lawyer reiterated that this approach exposed the province to additional damages if Dr. R. Warburton pursued a claim for wrongful dismissal, and indicated she was concerned that Dr. R. Warburton’s lawyer was, through correspondence, setting up to make an argument that the investigation was not carried out fairly or in good faith. The employment lawyer said that it was important to provide a response that addressed the requests for information, including when information would be provided, or why it would not be provided. The employment lawyer suggested that, where there was a concern that advance disclosure might jeopardize the investigation, allowing Dr. R. Warburton access to her files during the interview was an approach that could work. She said that, where the provision of certain information would not jeopardize the investigation, it should be provided in advance. The employment lawyer also sought clarification about what the PSA intended when it included language in Dr. R. Warburton’s suspension letter that she would have the opportunity to respond to any findings made about her. summarize their concerns and provide Dr. R. Warburton with a chance to respond. On October 9, 2012, Dr. R. Warburton’s lawyer wrote to the employment lawyer and indicated that although they disagreed with the government’s approach to providing particulars, they would proceed on that basis. With respect to providing a response to any findings, Dr. R. Warburton’s lawyer said that a meaningful opportunity to respond could not occur in the same meeting as the interview, and that Dr. R. Warburton should be allowed to review the materials and be given a week to prepare her response following a clear articulation by the PSA regarding any grounds for discipline. The PSA did not agree to this approach, and no further interview was scheduled with Dr. R. Warburton. Dr. R. Warburton was dismissed on October 22, 2012. 8.5.2.1.2  The Approach to Disclosure As described above, the PSA’s practice in relation to disclosure of information to employees prior to interviews ran counter to the approach recommended by the lawyers. The lawyers had explained to them that it is important to provide information in advance of interviews so that employees have a full opportunity to respond to the allegations against them. The lawyers told them that providing The PSA investigator replied to the employment lawyer particulars in advance of interviews also limits governthat one of the major concerns about providing informa- ment’s exposure to damages from claims by dismissed tion in advance is that they wanted an “in-the-moment” employees that the investigation was not carried out in response rather than something that might be rehearsed. good faith. This advice was largely not followed. With respect to offering Dr. R. Warburton a chance to None of the interviewed employees was provided with respond to any findings about her, the PSA investigator adequate information as to the nature of the concerns indicated that this language was in the form letter from about them. The following excerpt from an employee’s past legal advice they had received, but that if it was not interview demonstrates how difficult it was to respond to something they were required to do, the language could an investigator’s questions because the investigator did be removed from future suspension letters. not provide advance information about why they were to On October 5, 2012, the employment lawyer obtained instructions to send a letter to counsel for Dr. R. Warburton proposing that, although Dr. R. Warburton would not be provided with documents before being asked about them, the investigators would provide her with access to a computer and her electronic mailbox during the interview. With respect to providing Dr. R. Warburton an opportunity to respond to findings, the employment lawyer indicated that at the end of the interview, the investigators would be interviewed: Investigator: … I am just going to be very frank and say that to you. Here is an opportunity today that we are meeting with you because we have to make sure that, 1) the government’s information is safe and secure. We have to have a better understanding of what has happened here. We have concerns in terms of some of the emails we have posed to you, and I find it a bit confusing based CHAPTER 8 on what I have reviewed in your mailbox that you are so unsure about the questions we are asking you about [others] … You know, I have actually found it very interesting that you have not been able to give us a clear answer. From what I have read, I find that very questionable. Employee: … I’m not really sure, I guess up until now, what it is that you are looking for and what it is that you thought I did. It was the PSA practice to limit disclosure of particulars. The lead investigator also preferred to limit disclosure. We asked the investigators why they preferred not to provide interviewees with documents or information about the allegations or issues prior to interviews. They told us they feared the interviewees would, by reviewing documents, have a chance to concoct alternative explanations for their conduct or rehearse their answers. The investigators believed that by surprising witnesses with documents or questions they would obtain the best evidence. One investigator described, in an email he wrote in 2012, the basis for his concern about providing information to employees in advance: I was thinking about this a lot and it really bothers me. The lawyer for [the suspended employee] is sharp and obviously coached [the suspended employee] on how to answer some of the questions that were provided before (scripted almost). If we provide the e-mails it is not so [the suspended employee] can read them ahead it is so they can rehearse the right things to say. If they get the e-mails I don’t even know if it would be that worthwhile to continue questioning. Part of the idea of these meetings is to capture that initial response, potentially catch them in a lie and not give them time to prepare an elaborate work around answer. The lead investigator replied to this email, indicating that she agreed with the investigator and that she was “totally opposed” to providing information in advance. When we asked the investigator about writing this email, the investigator reflected that this may not have been the best approach. He described: … when [the lead investigator] started dropping those emails in front of people … the reactions, quite often, explained quite a bit. You could tell if they looked at it and they were boggled and were trying to figure out, well, what is that from, which is why it would have been nice to give them ahead of time. However, the investigator then told us, … but I found that sometimes when you put one of those notes down in front, by the reaction you would get in their expression that you get, you would know if you were on the right track to something. 8.5.2.1.3  Accuracy of Information Provided to Interviewees Contrary to the views expressed by the investigators, adequate disclosure can help to ensure that the evidence obtained through the interviews is reliable. The ministry investigation relied heavily on emails, in some cases related to events that occurred years before, as evidence of wrongdoing. Providing employees with those documents in advance or, at the very least, providing them during the interview with adequate time for the employee to fully review the documents would have helped the interviewees to: refresh their memories accurately explain and answer questions related to the content, purpose and context of the documents provide necessary contextual evidence identify additional documentation or information needed to explain the documents, circumstance or facts at issue During the course of the interviews, the investigators sometimes provided the employees copies of the documents that they had questions about. This approach is appropriate. However, in some cases, the interviewers did not show the actual documents to the witness but instead paraphrased them, telling the interviewee what a document said (sometimes incorrectly), and expecting them to explain without having the opportunity to review the relevant portions of the document. Sometimes, the emails that were provided did not include the entire string. 141 142 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS As a result, the ability of the employees to provide clear answers was impeded. consequences could result. In many cases, the investigative team advised the employees prior to their interviews The following is one example of an employee providing that their conduct was under investigation and they were unreliable evidence because the investigation team with- permitted to have representation at the interview. At the held a full email chain that was, at the time of the inter- outset of some of these interviews, the PSA investigator stated that the interview was part of an investigation into view, four years old. allegations that the employee had engaged in misconduct. This employee was interviewed three times. The investiga- This is a reasonable and fair approach. tors first asked the employee a series of questions about an email before showing it to him and without bringing In some other cases, the investigation team did not tell the full email chain to his attention. The events at issue employees that their conduct was under review. By had happened four years before the interview. Without mid-August 2012, the actions of several of the suspended seeing the full email chain, the employee did not have a employees’ supervisors in the Pharmaceutical Services full recollection of the actions he took following receipt Division had come under scrutiny. They received electronic of the email he was being questioned about. Throughout calendar invitations from an investigator that said simply: the next two interviews, the investigators repeatedly “… this meeting is part of an ongoing investigation into questioned the employee about the same email, implying the Ministry’s data practices which you are required to that he had not acted on it. During those interviews the attend. If you have questions or concerns please call me” employee admitted that he did not remember but speculat- [emphasis in original]. In the interviews, they were not ed that he might not have acted on the email. In the final told that their conduct was at issue. interview, the employee was finally provided with the full One of these supervisors told us that, during an interemail chain. He noted that in the full chain there was an view in October 2012, she asked one of the investigators additional email showing he did in fact act on the email in whether the team was investigating her and was told question. Despite the employee’s evidence, supported by no. However, the evidence indicates that the supervisor’s documentation, a failure to take any “discernable steps” conduct was under scrutiny as early as August 2012 and in response to this particular email was listed as one of that Mr. Whitmarsh had already discussed with PSA repthe grounds to support his termination. resentatives the prospect of terminating her employment. We found multiple additional examples where the investi- One supervisor’s evidence illustrated her experience of gators incorrectly quoted evidence obtained through their participating in the interview, having been given no coninvestigation when questioning witnesses. At times, it text and no notice that her conduct was in question. She was clear that the investigators were quoting evidence knew only that the interview related to an investigation from another witness in order to test its reliability. While into data practices and that she was required to attend: this can be accepted investigative practice, the investigaI go into the [interview] and I was totally unnerved. tors sometimes did not quote the evidence verbatim but I felt like I was being interrogated and in some misstated or exaggerated it. To the extent that the investisituations I actually felt bullied by that meeting. gators used this practice to test the reliability of evidence, The questions came out of context from scraps of it was incumbent on them to correctly characterize the e-mails. And if you read an e-mail out of context statement or make it clear that they were paraphrasing. that maybe the person wrote in a hurry, you often Investigators did not always do so. could read almost anything into that e-mail. And … I was actually confused by the process. I take 8.5.2.1.4  Notifying Interviewees of Potential for pride in being a relatively bright person and payDiscipline ing attention to what’s going on. And no matter As part of carrying out a fair investigation, employers how hard I tried to figure this out, I couldn’t figure should inform employees, prior to their interviews, it out … it didn’t make sense to me. that their conduct is under review and that disciplinary CHAPTER 8 When an employee is under investigation, government there was in fact a conflict of interest in a specific instance should always inform the employee – prior to any inter- dealt with during an interview, her response was: view – that the employee is the subject of the investiNo, I don’t think there was any ambiguity about gation and that disciplinary action is a possibility. In this whether that was happening, I just personally case, the employees who were not provided notice were hadn’t looked at it. So that work had been done, deprived of an opportunity to know and respond to the so I think it was confirmed, the contracts that, that case against them and to seek representation. [this employee] was signing on both ends. That that had been … confirmed. I don’t remember 8.5.2.2  The Investigators Lacked Objectivity [particular investigators], or somebody else in the Objectivity is fundamental to a fair and effective investiministry, but my understanding absolutely was gation. Investigators should approach fact-finding interthat that that was happening. I just didn’t review views with open minds, and consider all relevant evidence the contracts themselves to look at, you know, is presented to them. In the ministry investigation, the inhe signing it here? Is he signing it there? So my vestigators did not approach the interviews with an open understanding is that work was done. mind and started from the proposition that wrongdoing had occurred. The manner in which the investigative team conducted the interviews demonstrated that they were not willing to consider, in an open-minded way, evidence which contradicted their pre-conceived views. As a result, they consistently disbelieved the employees and took the view that the employees were being unresponsive and uncooperative. The investigation suffered as a result. As we described in Chapter 7, the investigators had not done this analytical work despite having drawn conclusions about conflicts of interest. Second, the investigation team did not demonstrate a good understanding of the applicable context, policy and practices. The lead investigator told us that the investigation team relied on ministry executives who had experience and skill in health research issues in order to confirm In our interviews with the investigation team members, we asked them whether they had considered alternative their own understanding and fill in any gaps in their knowexplanations for individuals’ behaviour in interviews or ledge. However, when they interviewed employees as part for the emails they had read. In most cases, they were of the investigation, they appeared to discount the subject unwilling to accept that there could have been an inno- matter expertise of those employees. The investigators cent explanation for the conduct being examined. This needed to have broad knowledge of the context in which is consistent with what we observed elsewhere in the the employees were operating in order to ensure that investigative process. Members of the team consistently they gathered sufficient and appropriate evidence in the reinforced each other’s belief in wrongdoing to the extent interviews, and then evaluated that evidence against the relevant standards.11 that no other explanation was possible. In a complex investigation, interviews can assist investigators, particularly those with no prior subject matter First, the interviews built on the shaky evidentiary foun- knowledge, to learn about and understand the relevant dation established by the draft Internal Review report issues and make appropriate, accurate findings about of July 6 and July 18, 2012, which had already identified employee conduct. The investigators did not gain the that certain employees had engaged in wrongdoing.10 As necessary knowledge prior to, or through, the interview a result, the interviews were focused primarily on finding process to execute their task proficiently. When draft termination letters were prepared regarding evidence to support pre-existing conclusions. For example, when we asked the PSA investigator whether two of the employees, the letters initially stated that anyone on the team had done work to determine whether they had acted contrary to the E-Health (Personal Health The investigators’ lack of objectivity resulted from four main factors. 10 See Chapter 7. 11 See Chapter 3. 143 144 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS Information Access and Protection of Privacy) Act. On re- investigators needed to test their theories or conclusions viewing the drafts, the lawyers pointed out that those with witnesses who were subject matter experts, or if laws did not apply to the conduct of the employees. Under- they wanted to put a preliminary conclusion about conduct standing the context in which employees are operating to an employee to give that employee an opportunity to reis critical to assessing whether their actions constitute spond. However, in such circumstances, the investigators misconduct. should not have an “end result” or “anticipated outcome” 13 Third, a number of significant steps took place early on, in mind. including the early suspensions of employees without pay, The PSA investigator gave evidence that she recognized and the early notification of the Office of the Comptroller they were sometimes unprepared: “I do have a lot of reGeneral and the OIPC, and the referral to the RCMP in late spect for [the lead investigator], but I did talk to her about August. All of these steps were taken while the investiga- things, like being prepared for the interviews, that we tion was still ongoing and no formal conclusions had been couldn’t go in and have incomplete documentation.” For reached. This created a risk that the investigators would her part, the lead investigator told us that the PSA set the become wedded to their theories in order to justify actions interview schedule, and on at least one occasion, the team that the ministry had taken based on the information the delayed an interview, recognizing that they were not ready. investigation team had relayed. A good safeguard against losing objectivity is to establish, The risk of any investigation losing its objectivity is al- and update as necessary, an investigative plan. The terms ways present; investigators will not always realize dur- of reference did not cover the myriad issues that the team ing an interview that they are operating with a closed was investigating by the time it began the second round mind. Everyone has a tendency to seek out information of interviews. The lack of investigative planning and the that supports their pre-conceived beliefs in a phenom- expansion of the investigation to increasing numbers of enon known as confirmation bias. Typically, confirmation ministry staff meant that the investigative team would bias “connotes the seeking or interpreting of evidence have required significant amounts of background informain ways that are partial to existing beliefs, expectations, tion in order to properly consider the employees’ evidence. or a hypothesis in hand.”12 In this case, the investigators Because they did not always have sufficient background determined early on that the ministry was facing a ser- information, they sometimes misunderstood the employious problem, and as a result, they tended to more readily ees’ evidence and reached incorrect conclusions. accept evidence that supported their view and discount 8.5.2.2.1  An Example of Loss of Objectivity or disbelieve evidence which contradicted it. The primary way the investigators’ lack of objectivity Fourth, the investigation team was operating under sig- manifested in the interview process was in their failure nificant time pressures, in part because they understood to properly consider the witnesses’ evidence. that Mr. Whitmarsh wanted those employees who were engaged in misconduct terminated by the date of the Rather than asking additional questions or paraphrasing public announcement. Investigators were not always well the witnesses’ responses back to the witness to ensure prepared for interviews, which meant they had to rely on they understood, the investigators sometimes argued with their own theories and assumptions to inform their ques- the witness, or moved on without acknowledging the wittions. Such a practice may be an appropriate interview ness’ evidence or exploring the issues further. Even where technique, but only if the interviewers are open to having the investigators believed they already had facts to suptheir theory questioned or refuted by the witness and port a conclusion, when presented with new facts or an then take time to properly inform themselves where they alternative interpretation of facts, they should have been need to. For example, it may have been appropriate if the prepared to examine that matter further in the interview. 12 Raymond S. Nickerson, “Confirmation Bias: A Ubiquitous Phenomenon in Many Guises,” Review of General Psychology, 2, 2 (1998): 175220 . 13 Marli Rusen, “RV-3: Fundamental Requirements of a Fair and Defensible Investigation,” 4. CHAPTER 8 The investigation team’s closed-minded approach was also illustrated by how it interpreted a witness’ nervousness or anxiety during the interview as a sign of culpability, or an employee not answering a question as a sign of evasion rather than a genuine inability to answer the question. Often, interviewees were put in an impossible position. If they denied engaging in the conduct alleged, they were disbelieved. If they admitted engaging in the alleged conduct, it convinced the investigators they were really on to something. As described in the sections above, witnesses were often given insufficient or inaccurate information, which impaired their ability to adequately and accurately respond to the interview questions. We expected the interviewers to have taken evidence that contradicted their theories into account in their subsequent questioning, particularly when that evidence was provided by those with subject matter knowledge. In most cases, they did not do this. For example, when interviewing Roderick MacIsaac, the investigators repeatedly asserted that he was using data for his PhD and that he had a flash drive containing ministry data in his possession. Mr. MacIsaac told the investigators nine times in the space of a two-hour interview that he did not use any data for his PhD, and five times that he did not have a flash drive containing ministry data in his possession. To illustrate the extent to which the investigators received, but did not hear this evidence, we have reproduced the nine occasions on which Mr. MacIsaac gave evidence that he did not use any data for his PhD (emphasis added): Investigator 1: I’m asking did you have a signed off document or agreement in place for you to externally use the data for your PhD project? Employee: No, but I haven’t actually started on that yet. Investigator 2: But you did submit a formal submission to the ethics review board? Employee: Right. That has to be done to explain to them that I am using anonymized personal data to get an ethic waiver so I don’t have to do an ethical review. Investigator 1: You identified [it] as an anonymized. Employee: Yes. Investigator 1: And who was going to make it anonymized for you? Employee: I don’t know. We are not at that stage yet. … Investigator 1: And what does the proposal say in terms of how the data will be anonymized? Employee: It just says it will be anonymized. Investigator 3: Did you have a plan for that? Employee: No Investigator 3: Was that through [two employees]? Employee: No. Investigator 3: … You had no discussion … about anonymizing the data at any time? Employee: No. Because I wasn’t working on my PhD. I was working on the smoking cessation program. … Investigator 3: And we can give you some high level things. Basically what the allegation is, or the concern is at this point, is that [you have] been using Ministry of Health data inappropriately for [your] PhD thesis without approvals. Employee: Okay. Investigator 3: Along with that, goes the release of data. Investigator 1: Possession. Investigator 3: Exactly. There are very strict rules around what data can be used for and the release and sharing of that data. Sharing disclosure … Before we get into any more questions did you want to respond to anything that I have just said? Employee: Well, so far I have only worked on the, when it comes to data, working with it, with regards to the internal evaluation on the smoking cessation program. I have 145 146 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS not gone to the stage where I am using any data for my PhD project. That has not started yet. … Investigator 1: And you have also confirmed earlier that you said that [an employee] had access to the secure portal for the data from Health Community Survey and you have just talked about [an employee’s] access to that, and that it was from the secure aspect, not the open data, correct, that was tied to your project. Employee: To the smoking cessation, yes. Investigator 1: Are you in the possession of any, any information from [certain employees …] that includes data for your PhD? Employee: Well, I am in possession of data for the smoking cessation program. Investigator 1: I will repeat my question. Employee: I haven’t started. I have not produced any data sets for my PhD. … Employee: Right. The data would be collected internally for the 2011 smoking cessation program and it would just simply refer to that being mean collected. Thank you. I have read it several times. The issue here is that I’m using PSD secure for the internal evaluation. I am not supposed to do any evaluation for smoking cessation until those data sets are anonymized. So I haven’t started anything in terms of data analysis for my PhD. … Investigator 1: No we are discussing it today with you … because it is your PhD. And we have emails here that say, “need data appendix for PhD proposal.” “Need data for … PhD.” So we are asking you, can you confirm that [other employees] provided you data for your PhD? Employee: No, they were providing me information for my smoking cessation program. Investigator 3: But … it says right on there. Employee: I know that … They are aware that I was eventually going to do a PhD, but this was actually for the smoking cessation program. … Employee: Yes, and people started getting confused about what I was working on for the Ministry and what I was working on for my PhD. … But everything I have been working on so far, except for the PhD proposal has been for smoking cessation program. PSA Investigator: That is not at all what the evidence suggests here. … Investigator 3: I’m asking the question, what we are talking about is data related to your PhD. You are saying that you were just a co-op student. We are saying that the data that we are talking about relates to your PhD proposal and you are saying you were just a co-op. And my comment or question to you, is as a PhD student are you not accountable and responsible for data usage, data access and data for your project? Employee: But that we would be working on it later on. Investigator 3: But you are not working on it later on. You are working on it. Employee: I’m working the proposal so it can be submitted before a committee and stuff like that. … Investigator 3: So you are aware that there are sharing data, and requests for data, there are, Employee: Yes, I know that. And I said that. And if you had looked at my previous emails you will have noted that I mentioned to [an employee], you can’t just give me the data. There are arrangements that have to be put out. CHAPTER 8 Investigator 3: Yet you didn’t have anything in place for your PhD? Employee: This was for the smoking cessation program again. employee conduct. It meant the investigators dismissed or overlooked evidence directly relevant to the issues they were meant to be examining. As a result, the interviews were not only unfair but ineffective. The investigators discounted relevant documentary and oral evidence that tended to show there was no misconduct, mischaracterized evidence and failed to provide employees with genuine opportunities to respond to the allegations against them. The ineffective fact-gathering process meant government made termination decisions Employee: Well there was no data released. with insufficient evidentiary bases and, in many cases, Investigator 3: Well I disagree with that. in the face of evidence that there was no misconduct at Mr. MacIsaac’s termination letter asserted that he had all, creating a risk that it would not be able to defend its “inappropriately accessed data for the purposes of [his] decisions later. The investigative process exposed the PhD” and that he had, in the interview, “provided mis- government to risk of increased damages in the event of legal action or arbitration due to the manner in which leading and incomplete information.” 14 employees were dismissed. The investigation team’s reluctance to believe the evidence that employees provided in their interviews was 8.5.2.3  Interview Style Was Too Often Argumentative reflected in the termination letters, which in some cases In any public service investigation, witness interviews included the following statement: should be conducted respectfully and in a manner that reflects the function of the interviews as fact-gathering You were given opportunities to respond to the exercises. There is room for a range of appropriate beallegations … your responses were often vague, haviour in an interview setting. Interviews can be difficult evasive and generally untruthful; you routinely atto conduct, particularly when the interviewer believes tempted to mislead the investigators by providing that they are dealing with a serious matter. However, false information. fact-gathering interviews should never be conducted in Having read the transcript and listened to the audio of the such a way that the ability of the witness to provide full interviews with these employees, we found that this was and frank evidence is impeded because they are put on an inaccurate and, unfair characterization of the employthe defensive by the interviewers’ conduct. ees’ responses in the interviews. Rather, it is evident that the interviewers did not adequately consider, with an open Many witnesses who had been part of this interview process reported that they were shaken up or upset by the mind, what the employees were telling them. conduct of the interviews. When we spoke with individ8.5.2.2.2  Lack of Objectivity Made the Investigation uals who had been interviewed, they most often described Ineffective their experience as an “interrogation.” Many people were The purpose of the interviews should have been to gather emotional when telling us how they had been treated evidence and contextual information that could later be during these interviews, which had taken place years assessed and weighed with other evidence to establish earlier. This reaction was not limited to those individuals whether or not there was any employee misconduct. This who were fired. did not happen. The investigators were often trying to find Based on our review of the audio recordings of the interwrongdoing rather than determine facts. views, we found that the investigators often did not ask This approach meant the investigators did not gather the open-ended questions. The lead investigator in particular necessary information to draw accurate conclusions about tended to ask questions in the style of cross-examination. Investigator 3: I know, I am just talking in general terms. You are aware of what needs to happen for the release of data, but there was no such documentation for the release of data to do with your PhD. 14 We assess the reasonableness of the decision to terminate Mr. MacIsaac’s employment in Chapter 9. 147 148 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS That is, her questions too often contained the answer she was expecting, and accordingly did not allow employees to provide full evidence on specific points. Interviewers sometimes interrupted the employees’ answers, and did not return to the question to allow the employees to continue their response. These issues impaired the evidence-gathering process. The interviews were not in keeping with our expectations for a fair and reasonable interview process. notice – the contractor’s wife, who was a ministry employee. This employee described to us how the investigators appeared at her desk and said, without introducing themselves, “you have to come with us.” When the employee asked what this was about, the investigators refused to answer. They could not find space for the interview, so after walking around the entire floor of the Ministry of Health building, ended up questioning her on a patio of the building. The employee said of her interactions with The tone of some of the interviews was problematic. the investigators, “they had nothing planned, they just Sometimes the investigators argued with the employees, swooped in and scooped me up.” It wasn’t until they were rather than asking them questions. Sometimes they told finally on the patio that the investigators even introduced the employees that they disbelieved the employees’ ex- themselves. planations about their conduct. On a few occasions, the These approaches were not only inappropriate but were investigators lectured the employees on their conduct or also not conducive to obtaining the best evidence. They told them that their conduct was unacceptable. The inves- had the effect of putting the witnesses on the defensive, tigators were not in a supervisory or reporting relationship which made it hard for them to give full answers to the with the employees and such conduct was outside of their questions posed. One witness explicitly told the investirole as fact-finders. gators that he was feeling defensive because he felt he When we spoke with her, the PSA investigator explained was being accused of things that he did not do. her perspective on the conduct of the interviews: I did talk to [the lead investigator], sometime let’s say half way through the process, I did talk to her about that we needed to be careful of our tone in the interviews and maybe dial it back a little bit, and there were you know she does have a very sort of police-investigator style at times with people so you know there were definitely issues with some of the ways that some of the questioning was done, I mean I know there were a couple of times where I started to lose my cool a little bit when you feel like you’re just constantly getting lied to…. In one case in particular, the investigators questioned an external contractor who they believed had possession of a flash drive containing personally identifiable data. The contractor was brought in on the pretence of discussing his contract and then questioned about the flash drive. The contractor was taken aback by the aggressive nature of the questioning. At the conclusion of the interview, the investigators began to search for and question – with no Overall, the approach to the interviews fell below the public service standard of ensuring that members of the public service are treated with respect.15 8.5.3  Executive Oversight of Interview Approach We have explained how the practice of not providing disclosure hampered the effectiveness and fairness of the interviews. It is essential for executives to ensure that individuals conducting investigative interviews do so with appropriate training and policies in place to guide their conduct. We heard from the PSA investigator that such controls were not in place at the time she was conducting this investigation. She told us that the best practices and training materials discussed in Ms. McNeil’s 2014 review report (see Chapter 16) “weren’t in place at the time … we started the investigations unit, and no one really knew what they were doing.” It was up to the PSA executives of the day to ensure that PSA investigators had the training and policies necessary to carry out their work effectively. One PSA executive did tell us that, with the benefit of 15 “We want to make sure that members of the public service are treated with respect, are treated appropriately when there are human resource implications involved with their work.” Hon. Terry Lake, British Columbia Legislative Assembly, Hansard, 7 October 2014, 4542 . CHAPTER 8 hindsight, he would have taken more steps to help the PSA investigator better carry out her role. We also heard evidence that concerns were brought to the attention of executives in the ministry about the conduct of the interviews. Mr. Whitmarsh denied hearing any such concerns. He said, “I had nothing to indicate to me that the conduct of the interviews was in any way inappropriate when I was there, not a single thing.” He also told us that he had: … heard that the individuals weren’t cooperating as I understood it with explanations as to what these events were … A frequent theme was incredible frustration that no one would cooperate in the interviews and help them explain not just what happened. The idea that individuals were not cooperating was persistent; it showed up in three of the termination letters as one of the grounds on which individuals were fired. However, what investigators perceived as lack of cooperation was, as described above, often a refusal by interviewees to agree with the investigators’ theory of events, because the interviewee believed that theory was incorrect. In November 2012, an employee who was interviewed grew increasingly concerned that the investigators’ lack of knowledge of basic facts and the serious accusations they levelled against him threatened his employment and indicated major flaws in the investigation. He sent an email to both the Minister and the Deputy Minister of Health outlining his view of the investigators’ misunderstandings and the serious allegations of wrongdoing that were built upon those misunderstandings. He questioned whether “information-gathering” interviews were appropriate venues to level serious accusations. If so, he believed it was only fair that the investigators advise staff of their right to be accompanied by legal counsel. [sic] inquiries when they are complete and in the meantime would encourage you to participate fully. Minister MacDiarmid did not recall receiving the email, and she did not respond directly. On September 5, 2012, a PSD Executive Director who had been interviewed wrote an email to Ms. Walman raising concerns that the investigators misunderstood the context of the ministry programs and questioning whether they might be inappropriately targeting individuals: … [following my interview] I left wondering whether the review has made its conclusion of scandal, but was fishing to find things to fit the conclusion. I also left wondering whether there was a full understanding of the ADTI, how PSD viewed research and relationships with researchers. Without the full understanding, it seems awkward and a bit unfair to apply a more conservative black-white approach towards staff, research or associated, and penalize them when a more liberal grey approach was generally accepted before. That is not to say a different approach cannot be used or that we cannot improve going forward. I support a review that strives to find the truth around alleged inappropriate action. And if there is inappropriate actions, that whatever penalty is determined will consider the degree of severity of inappropriateness and considers the individuals’ other contributions to public service. Aside from the potential impact to the individuals, I am concerned about the overall impact of this on PSD staff and ADTI project itself. I write this to you so you can hopefully get a better understanding of the “other side” of the story, both of the investigation and the context within PSD that the situation has emerged … Mr. Whitmarsh responded to the email the same day by expressing the confidence he had “in the investigative team and the work they are doing,” and asking the em- The evidence demonstrates that key executives had some ployee to continue to work “within the parameters of the awareness about concerns that employees were raising ongoing investigation.” He explained: about how the interviews were being conducted. The oversight provided by senior executives is a key control Neither the Minister or I will be engaging in, in an investigative process. It is difficult for a public seror commenting on the points you raise. I will vice investigation to be conducted fairly if executives do review the outcome of the investigative teams 149 150 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS not take responsibility for ensuring that those conducting the investigation understand and apply basic principles of fairness of the kind that we articulated in Chapter 3. In this case, executives did not take responsibility for the way that the investigation was unfolding. 8.5.4  Failure to Interview Key Individuals 8.5.4.1  Former Assistant Deputy Minister No one interviewed Mr. Nakagawa, who had created the organizational structure within which many of the matters under investigation allegedly occurred. The reason for this omission is unclear. 8.5.4.2  Supervisors and Others in the Reporting Structure As we reviewed transcripts and audio of the interviews, it became clear that the investigators were struggling to figure out whether the alleged conduct of many individuals was appropriate. It is understandable that they struggled in this respect; as described above, they did not have the program knowledge to fully understand what were, in some cases, very complicated questions. However, the investigators failed to involve other employees who could provide explanations, context or background information. For example, they did not always seek The PSA investigator’s evidence was that Mr. Whitmarsh information from individuals’ supervisors or from others told the investigators not to interview the former Assist- who were in a position to understand the kind of work ant Deputy Minister. The lead investigator also recalled that the employee did and was supposed to do. Instead, that a member of the executive at the ministry gave that supervisors were, in many cases, cut out of the investidirection. The PSA investigator described this as “crush- gation and any resulting disciplinary decision making. One ing” because Mr. Nagakawa had a lot of information that employee raised this issue in her interview, stating: would have related to the issue of whether the employee Before we get underway, I would like to ask a conduct at issue had been condoned. question of the panel? My ADM and my Executive Director both wanted to be here in the room When we interviewed Mr. Nakagawa, he said that Mr. during this informational interview. That request Whitmarsh had called him to let him know that he might was declined. I would like to know the rationale be contacted by an investigator and asked if he would for that? If this is informational, they have an incooperate. He did not remember the exact timing of the terest in what is happening to their employees. telephone call, but speculated that it was around the public announcement of the firings. The former Assistant The investigator responded: Deputy Minister’s evidence was that he responded, “Of Our interest is really hearing directly from you … course I’ll cooperate.” He said that he was not given any this is a very large and complex investigation and specifics about the investigation and did not volunteer … It is incumbent upon us to keep things as tightly any information. controlled as possible so the fewer people that Mr. Whitmarsh’s evidence was that the investigation are accessing the information, or are privy to the would likely expand to the executive at some point, but things that we are discussing, the better. he did not want it to involve them while employees were In other cases, the investigators did speak with superstill suspended without pay. He was concerned that some visors but only in a limited way. One Executive Director ministry executives might have been implicated in the whom we spoke with was interviewed for 30 minutes and wrongdoing. left wondering whether an employee in her branch had The investigator’s inability to interview Mr. Nakagawa, sold health data (the investigation team had no evidence whatever the cause, was a significant omission in the that this was the case, and we found no evidence to supinvestigative process. It left investigators with a gap in port that allegation). That supervisor told us: information in terms of understanding the history, purpose … they implied that [the employee] had received and structure of PSD. When we spoke to Mr. Nakagawa money. For some kind of personal or financial gain, he told us it was the first time he had been asked about [the employee] had provided data to an outside this matter. source, and they wanted to know if I thought CHAPTER 8 that – that that would have been okay, that providing some kind of data for personal gain or financial gain. … And the reason why I remember is because I thought that was bizarre. … I had no idea what they were talking about. Regardless of who decided to contact the RCMP, the evidence is clear that they jointly supported the referral. On August 20, 2012 the lead investigator emailed the IU Director and another IU staff member to say, in part: … we had a MOH briefing on Friday re this file and The Executive Director said that the investigators did not wondered if we could chat for a few minutes tom relate the allegations to specific individuals or data; rather, re advising police. it implied something was going on “behind the scenes.” On August 23, 2012, the IU Director telephoned an officer No one asked the Executive Director about the allegations in the RCMP’s Commercial Crimes Unit. He told the RCMP that actually appeared in the employee’s termination letter. member to expect a call from the lead investigator about The investigative approach in relation to the supervisors of “possible breach of trust/data breach.” The following day, the employees under review, created a gap in the investi- the lead investigator spoke with the RCMP member to gation team members’ knowledge that made it more likely discuss the matter. They set up a meeting for the following they would base their conclusions and recommendations Monday, August 27, 2012. Over the weekend, the lead on an incomplete or inaccurate understanding of the facts. investigator sent the RCMP member a copy of the draft Internal Review report dated August 16, 2012. The RCMP member’s evidence was that he reviewed this document 8.6  Report to the RCMP quickly. The first discussions about reporting the matters under On August 27, 2012, the RCMP member met with the investigation to the RCMP likely occurred in a meeting be- lead investigator, the IU Director and another IU employtween members of the investigation team and the Office ee. According to the RCMP member’s notes of the meetof the Comptroller General held on June 22, 2012, three ing, as well as notes taken by the provincial government weeks into the investigation. employees who attended, they discussed the August 16, When we asked the lead investigator about the rationale 2012 draft of the Internal Review report and allegations for reporting to the RCMP, she told us that where there of possible “fraud/breach of trust.” The lead investigator are “concerns about any potential criminal wrongdoing “laid out relationships between the parties.” on any investigation I’ve done in the past … whether it’s Mr. Whitmarsh told us that he understood that the lead conflict of interest or, you know, fraud or any type of event investigator had referred the matters arising from the that you, that could be any possibility, our role is just to investigation to the RCMP. Mr. Whitmarsh said that he notify the OCG.” While the lead investigator said she was understood the referral was routine and required by govfollowing the lead of the Office of the Comptroller General, ernment’s core policy. the Director of the Comptroller General’s Investigation and According to the RCMP member’s recollection of the Forensic Unit (IU), in contrast, said he was just involved to meeting, the lead investigator explained that an individ“monitor” the situation. He said ministries “are obliged to ual had come forward with information about employees contact the RCMP. We’re not their servants … in the early in the Pharmaceutical Services Division of the Ministry. stages my instructions were to monitor so if I’m invited by The allegations related to access to and use of data for [the lead investigator] to attend a meeting with the RCMP academic research and publications, thereby creating a I think it’s fitting that I attend the meeting to monitor.” He personal benefit, and possibly resulting in missing data. told us that it was common for him to recommend referrals to the RCMP as it was standard operating procedure and For the RCMP member, this raised various questions about consistent with the Core Policy and Procedure Manual. whether the use of data as described was a benefit and When we interviewed each of them separately, the lead whether such use was authorized through contract or investigator and the IU Director each indicated that the other means. The lead investigator put considerable emother made the decision to report the matter to the RCMP. phasis on the relationships between the parties, which for 151 152 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS the RCMP member raised questions about whether those relationships or any transfer of money between individuals was properly authorized. At the meeting the RCMP member described the elements and evidence that would be required in order to prove a possible offence under the Criminal Code, based on the facts provided to him. He made no commitment that the RCMP would investigate, nor did he require those at the meeting to take any steps to further the RCMP’s potential investigation. He told them that a decision on whether to investigate would depend on the RCMP receiving a final report and on the RCMP’s capacity at the time to take on the matter. The lead investigator told the RCMP member that a final investigation report would be ready around September 18, 2012. Following this meeting, the RCMP had internal discussions about how they would manage the file if it became an active investigation. Despite these discussions, the RCMP remained of the view that they had not been provided with any evidence of a criminal offence. In the absence of this evidence, they would not conduct an investigation. The RCMP member did not recall any discussion at this initial meeting of employee suspensions or firings. His understanding was that the ministry’s team was close to completing its investigation. On September 12, 2012, the RCMP opened a file on this matter, pending receipt of a report that contained evidence of criminal activity. The RCMP confirmed that opening a file is an administrative step only. The date on which a file is opened does not necessarily correspond with the date on which the RCMP was contacted with a complaint. We were told by the RCMP that it was not unusual for a file number to be generated some time after a referral was made. In this case, the records were unequivocal that the IU Director first contacted the RCMP on August 23, 2012, followed the next day by the lead investigator. The Labour Day weekend, police training days and regular time off between that date and September 12 accounted for the time lapse between the initial contact with the RCMP and the RCMP file being created. We also learned that as part of the RCMP’s record-keeping process, the initial synopsis of a file must be updated when the file is concluded. The concluding synopsis for this file inadvertently made reference to the initial meeting with the investigation team having occurred on September 12, 2012. In fact, it had occurred on August 27, 2012, as was confirmed by the verbal and documentary evidence we received. 8.6.1  Analysis: Decision to Report to the RCMP As it read in 2012, the Core Policy and Procedures Manual set out the following procedure for making reports to the police: In all cases where a ministry has reason to believe that the conduct of an employee or contractor in the workplace is criminal in nature, the ministry should promptly notify the appropriate police authority and cooperate in any resulting investigation or prosecution. It is recommended that ministries contact the Comptroller General and the human resources consultant assigned to their ministry for advice and guidance. For loss incidents arising from illegal activity, the policy in effect in 2012 provided that the Executive Financial Officer will contact police: Where it is suspected that an employee is involved in a loss incident resulting from an illegal activity, the executive financial officer or delegate must immediately advise and seek guidance from the Comptroller General and the human resources consultant assigned to the ministry. The executive financial officer will contact police, if warranted. The Comptroller General may direct Internal Audit and Advisory Services to conduct or otherwise assist in an investigation of the incident. Since 2012 the policy has been amended and now provides: In all cases where a ministry has reason to believe that the conduct of an employee or contractor in the workplace is criminal in nature, the ministry should promptly notify the appropriate police authority and cooperate in any resulting investigation or prosecution. It is recommended that ministries contact the Comptroller General; CHAPTER 8 Legal Services Branch; and the BC Public Service Agency for advice and guidance. incident” then under the policy Mr. Sidhu should have been the individual to have made such a report. However, the ministry investigation team did not find that the ministry had suffered any losses. And Where it is suspected that an employee is involved in a loss incident resulting from an illegal activity, the executive financial officer or delegate must immediately advise and seek guidance from the Comptroller General; Legal Services Branch; and the BC Public Services Agency. The Executive Financial Officer will contact police, if warranted. The Comptroller General may direct or assist in an investigation of the incident. In an email to the lead investigator on August 1, 2012 Ms. Kislock suggested that one of the employees was “breaking the law” by sharing data. In her interview, Ms. Kislock indicated that she thought that the conduct of the individuals under review could have potentially engaged the offence provisions in the Pharmaceutical Services Act. However, we did not obtain any evidence that suggested that breach of that provincial statute was what formed the basis for the report to the RCMP in 2012. In this case, Mr. Sidhu, Executive Financial Officer for the The Ministry of Health publicly announced that the matter ministry, contacted the OCG about the matters under in- had been referred to the RCMP in its September 6, 2012, vestigation. With the assistance of the OCG, the lead in- news release. This issue will be discussed in the following vestigator reported the matters to the RCMP on behalf of chapter. the ministry. If the ministry was concerned about a “loss Findings F 12 The Ministry of Health acted reasonably in suspending Ramsay Hamdi’s access to data pending an investigation. F 13 The August 2012 employment suspensions of the three included employees were improper because: a. They lacked sufficient evidentiary basis. b. T hey were made without reasonable grounds that their continued presence constituted a reasonably serious and immediate risk. c. T hey were made without due regard for whether lesser measures were sufficient to address the perceived risk to the ministry. F 14 The interviews conducted by the investigation team were improper as they had all the procedural flaws identified in the findings of the McNeil Report: a. T he interviews were not conducted objectively and failed to adequately obtain or record exculpatory as well as inculpatory evidence. b. The employees were not consistently provided notice of the allegations against them. c. Employees were not always provided an adequate opportunity to provide a full response. d. Employees were not provided an adequate opportunity to review relevant documents in advance of the interviews. F 15 In addition, there were other procedural flaws, as some of the interviews were: 153 154 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS a. N ot conducted appropriately in that investigators were unnecessarily argumentative and aggressive when it served no investigative purpose. b. Conducted in disrespectful manner or inappropriate location. c. P urportedly conducted as informational interviews when in fact the interviewee was suspected as having committed wrongdoing even before the interview took place. d. C onducted without having afforded individuals the opportunity to have representation present. F 16 In 2012 ministry executives had some awareness of the concerns being expressed by ministry staff about the conduct of the interviews and the direction of the investigation but took no substantive action to determine whether the concerns were valid. F 17 The lead investigator and the Director of the IU met with the RCMP on August 27, 2012. The RCMP indicated no decision would be made whether to commence a police investigation until government’s investigation was complete and a final report was provided to the RCMP. No final report from the Ministry of Health investigation team was ever provided to the RCMP. CHAPTER 9 9.0 / EMPLOYEE DISMISSAL DECISIONS AND PUBLIC ANNOUNCEMENT 9.1 Introduction On September 6, 2012, the Minister of Health announced publicly that ministry employees had been suspended or terminated with cause and that the RCMP had been contacted. The accompanying press release stated that the Ministry of Health had provided the interim results of its investigation to the RCMP and had asked the RCMP to investigate. That same day, the ministry dismissed David Scott, Roderick MacIsaac, Ramsay Hamdi and Ron Mattson for what it alleged was just cause. On September 13, the ministry dismissed Robert Hart, also alleging just cause. On October 22, 2012, the ministry dismissed Dr. Rebecca Warburton, also alleging just cause.1 This chapter of the report outlines who was responsible for those dismissal decisions; describes and analyzes the process leading to the decisions, including the involvement of legal counsel; and assesses the propriety of the decisions as they related to each of the employees who were fired. It then describe the series of events leading to the September 6, 2012, public announcement. 1 The Ministry of Health did not terminate Dr. Maclure’s employment because he had already taken the position that his suspension without pay amounted to a constructive dismissal. Mr. Whitmarsh was not directly involved in the decision to suspend Dr. Maclure. 155 156 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS View main timeline Jul 16, 2012 Aug 14, 2012 Government Communications and Public Engagement (GCPE) prepares information note with key holding messages. Deputy Minister of Health Graham Whitmarsh asks for holding messaging to use in the event of a leak. Sep 6, 2012 Sep 6, 2012 Public announcement of referral to RCMP and employment dismissals. Ron Mattson, Ramsay Hamdi, David Scott and Roderick MacIsaac dismissed. Aug 29, 2012 Sep 4, 2012 News release drafted and date for news conference set. Vancouver Sun reporter advises GCPE of plans to report on pending Ministry of Health investigation. Sep 13, 2012 Oct 22, 2012 Robert Hart dismissed. Dr. Rebecca Warburton is dismissed. Sep 5, 2012 GCPE Communications Manager informs reporter that the RCMP were notified. Sep 5, 2012 Margaret MacDiarmid sworn in as Minister of Health. Michael de Jong sworn in as Minister of Finance. Dyble, Premier Christy Clark, Minister Michael de Jong (Minister of Health from March 2011 to September 5, 2012), Minister Margaret MacDiarmid (Minister of Health 9.2.1  Decisions Made by Deputy Minister from September 5, 2012, to June 2013); or anyone else in Ministry of Health Deputy Minister Graham Whitmarsh a similar role as having directed the dismissal decisions. made the decisions to terminate the employment of these Based on the evidence we have received and reviewed, six individuals. As Deputy Minister, Mr. Whitmarsh was we are confident in concluding that, although Premier the only person who had the statutory authority to dis- Clark, Minister de Jong and Mr. Dyble were all aware of miss an employee for just cause, pursuant to section 22 the investigation, none of them, and no one in the Preof the Public Service Act.2 When we interviewed him, Mr. mier’s office or the Minister of Health’s office directed Mr. Whitmarsh accepted that he was the only person in the Whitmarsh to make the dismissal decisions. Ministry of Health with the power to dismiss individuals When we interviewed him, Minister de Jong confirmed and that he had made the decisions. Our conclusion that that, as set out in a draft letter Mr. Whitmarsh prepared, Mr. Whitmarsh made the dismissal decisions is also con- he directed Mr. Whitmarsh on August 3, 2012 to “take all sistent with evidence we received from other witnesses. necessary actions to identify and address risk exposure, It is also consistent with the evidence we received about ensure compliance with government policies and pursue his decisive leadership style, as discussed in Chapter 8. employee disciplinary actions if warranted.” The Minister 9.2  Dismissal Decisions Neither Mr. Whitmarsh nor anyone on the investigation team pointed to Deputy Minister to the Premier John 2 told us that when he was briefed on August 3, 2012, it was uncertain whether there had been any wrongdoing, Public Service Act, R.S.B.C. 1996, c. 385. Section 22(2) states: “The agency head, a deputy minister or an individual delegated authority under section 6(c) may dismiss an employee for just cause.” In September 2012, the authority to dismiss employees for just cause had not been delegated to any other individual in the Ministry of Health. CHAPTER 9 only that there had been a data breach. He recalled asking We also describe the role of the Legal Services Branch Mr. Whitmarsh “whether, based on what he knew thus (LSB) of the Ministry of Justice in detail later in this chapfar, was this a case of people in the pursuit of their dut- ter, including our finding that no legal advice was sought or ies and in pursuit of the public good maybe being a little provided regarding whether there was just cause for the overzealous?” Minister de Jong told us, “I indicated that dismissals. Mr. Whitmarsh testified that he believed that [Mr. Whitmarsh] should proceed as he is required to do LSB had provided legal advice in relation to the merits of and do so in accordance with the rules and policies that the terminations.3 He said that he believed lawyers had are in place.” Minister de Jong told us that he does not reviewed the termination letters and that legal advice provide specific instructions to his Deputy Ministers on about the merits of the terminations was implicit in that human resources issues, and did not do so in this case. review. We have concluded that he held an understandPremier Clark did not recall ever being briefed about the able though mistaken belief that legal advice on the merits decision to terminate the employees. Mr. Dyble denied of the dismissals had been provided. In one case, however, he put any pressure on Mr. Whitmarsh to make the dis- involving Mr. Mattson’s dismissal, we find that, despite missal decisions, and this is consistent with the evidence that belief, Mr. Whitmarsh should have taken proactive of Deputy Minister Lynda Tarras, then-head of the Public steps to follow up to resolve the conflict between his belief that legal advice had been provided and the advice Service Agency (PSA), and Mr. Whitmarsh. he was receiving from the PSA that just cause probably Minister MacDiarmid first learned about the dismissals did not exist to dismiss Mr. Mattson. planned for September 6, 2012, at her first briefing on September 5 (discussed in section 9.4.6 below). She recalled: 9.2.2  Process for Reaching Dismissal … the firing decisions, I think had already been made. Nobody ever talked to me about, you know, should we fire these people or shouldn’t we. I didn’t think anything of that because in my view, the minister does not do that. … I just remember it being presented to me as a fait accompli. … I did not question that and I don’t remember Graham, other than just saying, “we’re doing this.” Ms. Tarras was involved in the process leading to the decisions as outlined earlier in this report but did not make the decisions. She was out of the country on vacation from August 22, 2012 until the day before the terminations. As Deputy Minister of the PSA she had overall responsibility for the human resources advice provided to Mr. Whitmarsh and we comment in section 9.2.3.2 below regarding the problems PSA had carrying out its advisory function. 3 Decisions Serious discussions about whether to fire the employees for cause occurred at the regular Friday meetings that Mr. Whitmarsh scheduled in August 2012 with the investigation team, senior executives from the Ministry of Health, staff from Government Communications and Public Engagement (GCPE) and the PSA throughout August. During this time period the core investigation team still consisted of the lead investigator, the PSA investigator, the strategic human resources specialist and the contracts specialist. The PSA investigator described the process of gathering evidence to support a dismissal decision as getting over a “hurdle.” Mr. Whitmarsh used similar language to describe the process of determining who would be dismissed. Mr. Whitmarsh described it as getting “over the bar.” He described the process: … [the lead investigator] looks at the severity of what’s happened with respect to data handling, [the PSA investigator’s] job is to decide what the consequences are, now we have to be sure that As will be pointed out below, one of the jurisdictional limitations that applies to this investigation is that the Ombudsperson may not investigate a person acting as a solicitor to an authority or a person acting as counsel to an authority: Ombudsperson Act, s. 11(1)(b). Since the Ombudsperson’s role is to examine the conduct of authorities, this limitation does not prevent the Ombudsperson from examining whether an authority sought or received legal advice, which is why we received evidence directly from LSB. However, we have done that solely for the purpose of assessing the actions of the authorities, not to assess the actions of legal counsel. 157 158 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS these individuals were over the bar you know with or without management … I mean there’s a set of scenarios, right, and I did not know which was true … one scenario is that management had no idea about this, in which case there’s clear culp[ability], there’s another where management had some idea, which seemed to be kind of what I gathered – that this was as much as anything inaction when these things were raised to them … The PSA investigator gave evidence that Mr. Whitmarsh presented terminating individuals as the only option where misconduct was found, and directed the investigators to amass instances of wrongdoing for those individuals. Mr. Whitmarsh did not accept this explanation when we put it to him. Mr. Whitmarsh strongly denied that he ever told the PSA representatives that terminations were the only option. He believed that the PSA was backing away from its responsibility. His position was that, “it is inconceivable to me that four people could have letters drafted by PSA and I would get to sign them if PSA was uncomfortable in any way.” The PSA drafted the dismissal letters and decided what grounds for dismissal would be included in them. For some of the letters, other members of the team provided input, fact-checking, and revisions. Mr. Whitmarsh indicated that he viewed these letters as the PSA’s effective recommendations for dismissal. While Mr. Whitmarsh made the dismissal decisions, he did so based on the information the investigation team provided to him. The PSA supported the process by preThe language used by both Mr. Whitmarsh and the PSA paring the content of the dismissal letters and facilitated investigator to describe the dismissal discussions, the evi- and attended the termination meetings. dence we heard from other witnesses, and the content Since the dismissals, many of the parties involved have of and approach to the interviews strongly suggest that, minimized their involvement in the actual dismissal defrom the outset of the investigation, investigators believed cisions. The lead investigator told us that she was not dismissals were likely. To a large extent, the investigation involved in human resources decisions. However, the team spent the time between the initial suspensions and evidence shows that the lead investigator reviewed and the dismissal decisions focused on trying to gather suffi- contributed some of the alleged grounds for the dismissals cient evidence to support dismissals. in the termination letters. Further, there is no doubt that When we spoke with him, Mr. Whitmarsh explained that the human resources decisions were based on the inveshe made the dismissal decisions on the basis of recom- tigative findings. Mr. Whitmarsh told us that he tasked mendations from the PSA. The PSA investigator confirmed the lead investigator with uncovering the wrongdoing that Mr. Whitmarsh made the decision to dismiss the em- and relaying it to him and the PSA investigator to make a ployees, but asserted that “there weren’t recommenda- recommendation about the appropriate discipline. tions” from the PSA. She elaborated: 9.2.2.1  Assistant Deputy Minister Involvement in Graham said it was from the very beginning that Dismissals anybody that was touched with this was getting The dismissal letters for Mr. Hamdi and Mr. Scott were fired. So, it’s not like there were an assessment of accompanied by “suspension pending recommendation each person like … what you would normally do. for dismissal” letters purportedly from Heather Davidson, That didn’t happen in this case because it was – Assistant Deputy Minister of the Ministry of Health Planwell, have you found misconduct? Yes? Then it’s ning and Innovation Division. This dual letter approach terminate. … so if you want to say I made recwas common practice when dismissing bargaining unit ommendations, it would be I guess so, because I employees. Their suspension pending recommendation said, oh absolutely, [an employee] misconducted for dismissal letters and their dismissal letters (the latter himself for example, based on our findings to signed by Mr. Whitmarsh) were issued on the same date. date … There were certainly conversations with The suspension pending recommendation for dismissal Graham about the weakness of not finishing the letters provided greater detail with respect to the alleged investigation, and he wasn’t interested in that so misconduct than the dismissal letters did. The dismissal there weren’t specific recommendations. CHAPTER 9 letters to Mr. Hamdi and Mr. Scott referenced the suspension pending recommendation for dismissal letters in the following way: Having considered the information on which this recommendation is based, I concur fully with the conclusions reached by Heather Davidson and communicated to you by letter dated September 6, 2012. It is my opinion that the misconduct identified in Ms. Davidson’s attached letter is completely incompatible with the standards of conduct required of Public Service employees. been privy to the investigation process or findings. She explained her request for more information to us: Because by then I had got suspicious about what the process was, because I was seeing how – well, I was just hearing from my staff about, about it and their concerns. And so that’s why I – and just as a matter of process, that I would want to see what the evidence was. And like I said, I never saw that letter until I read it here. I was really actually quite shocked that they’d use my name. … And also as I said, I was beginning to get concerned about what the process had been, because of what I knew, or what I was hearing from my staff. So that was why I wanted to know, “Is there justification, and has there been a legitimate process?” However, Dr. Davidson made no such recommendation to Mr. Whitmarsh either orally or in writing. Dr. Davidson did not sign the suspension pending recommendation for dismissal letters. In fact, Dr. Davidson did not know of their existence until she reviewed them as part of our investigation. Dr. Davidson was not involved in assessing The Employee Relations Specialist, who was copied on the the allegations against her employees, deciding whether email exchange, responded by requesting that Dr. Davidtheir actions amounted to misconduct or whether dismiss- son reply immediately with her availability for the terminal was appropriate discipline. She was aware only that the ation meetings set up for the following day. Dr. Davidson ministry intended to terminate Mr. Hamdi’s and Mr. Scott’s was not given information on the process and justification employment. She attempted to gain information about for their terminations. the pending dismissal decisions, but she was not able to get a briefing before the dismissal decisions were made. Dr. Davidson informed the Employee Relations Specialist that she would be in Vancouver on September 6, 2012, On September 4, 2012, a member of the investigation when the termination meetings were scheduled and reteam contacted Dr. Davidson to inform her of the impend- iterated that she had asked for a briefing on the process ing dismissals of two of her employees: and rationale for termination before the meetings. The Hi Heather – looks like we will be ready to proEmployee Relations Specialist responded on September 5, 2012, stating, “These meetings need to occur tomorrow ceed with 2 terminations in your area (Ramsey [sic] Hamdi and David Scott) this week. per Graham’s request therefore I have made alternate arrangements.” Dr. Davidson was never briefed on the You will need to invite Mr. Hamdi and Mr. Scott reasons for termination, nor was she told that suspension to attend separate meetings this week (preferably pending recommendation for dismissal letters had been Thursday), along with their union representation. drafted under her name. I suspect this will need to be couriered to them Manjit Sidhu, Assistant Deputy Minister of Finance and and have asked the PSA for some wording re: the Corporate Services, signed those letters on Dr. Davidson’s meeting notice. I should be getting this shortly behalf and he attended the meetings with Mr. Hamdi and and will forward to you. Mr. Scott to deliver them. Mr. Sidhu told us that because Graham will sign the termination letters (today Dr. Davidson was unavailable, “Graham asked me to go or tomorrow). and basically convey the message to them, so that’s what Dr. Davidson responded by asking for information on the I did. I went and read from a prepared script and gave process and justification for the dismissals, as she had not them the message. That was my only involvement.” Mr. 159 160 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS Sidhu was unaware of any concerns that Dr. Davidson had. It was also Mr. Sidhu who met with Mr. MacIsaac on September 6, 2012, to deliver his dismissal letter. Barbara Walman (Assistant Deputy Minister, Pharmaceutical Ser­vices Division) had been away from the office from August 7 to 31, 2012. On September 4, 2012, the same member of the investigation team who had written to Dr. Davidson sent a similar email to Ms. Walman, as follows: Hi Barb – looks like we will be ready to go with 2 terminations (Ron Mattson and Roderick MacIsaac) this week. Don’t believe we need to do Roderick’s in person; however, we need to invite Ron and his representation to a meeting to deliver the message. I have asked the PSA for some wording re: the meeting notice. Should be getting this shortly. Graham will sign the termination letter (today or tomorrow). Can you set some time aside to conduct the termination on Thursday? I have copied [the Employee Relations Specialist] on this email – as she has agreed to sit in on the terminations. Ms. Walman responded the following morning to say, “I would like a briefing on exactly what we are terminating him for.” When we showed this email to Ms. Walman she told us, “there’s obviously been a decision by the Deputy [Minister] … so he’s obviously been briefed on Ron Mattson … and then I get a letter … he’s in my division. So I – I am the one that delivers the – the termination letter.” She did not recall the specific details of the briefing she received about Mr. Mattson, only that she thought “it was the restatement of – of the case.” made for him to deliver Mr. MacIsaac’s letter as well. As described by the Employee Relations Specialist: And then Roderick was added at kind of the last minute on the 5th. … It’s interesting because when I was looking – yeah, because I had been setting up meetings for Dave Scott, and Ramsay Hamdi, and it wasn’t until the afternoon that Roderick was added … Lindsay Kislock (Assistant Deputy Minister, Health Sector Information Management and Information Technology) was away from the office from August 20 to September 7, 2012 so she was not present during the period leading up to the termination and was not present or consulted when Mr. Whitmarsh made the decision to terminate Mr. Hart, who worked in her division. She gave evidence regarding the arrangements for Mr. Hart’s termination on September 13: … a date and time has been fixed where Bob Hart will appear at the Public Service Agency office … and I’m advised where to go and meet [the Employee Relations Specialist] who gives me a letter that’s been signed by Graham that outlines the reasons that Bob is being terminated. Ms. Kislock met with Mr. Hart and delivered his termination letter. 9.2.2.2  Involvement of Supervisors In Chapter 8, we described how the investigators, in general, either failed to interview employees’ supervisors or did not interview them in a comprehensive way so as to understand the work these employees did or obtain context about the allegations. Similarly, these supervisors – mainly at the Director or Executive Director level – were The decision to dismiss Mr. MacIsaac was made not long not involved in the decision-making process with respect after his interview. Mr. MacIsaac was interviewed on Au- to the dismissal decisions. Instead, the investigation team gust 28, 2012. His Assistant Deputy Minister Ms. Walman provided information directly to the Deputy Minister. was informed of the decision to terminate Mr. MacIsaac For example, one Executive Director we spoke with had on September 4, 2012. Mr. Sidhu met with Mr. MacIsaac not seen the dismissal letter for an employee in her divand delivered the dismissal letter in person on September ision until we interviewed her in the fall of 2016. She 6, 2012. Because Mr. Sidhu was delivering the termination told us: letters to the other two included staff, arrangements were … I was never consulted, advised, discussed prior to this happening … I was quite upset and CHAPTER 9 disappointed in that because [the fired employee] was a staff person in my branch. So I do feel that it would have been beneficial to talk to me. So I do disagree with that approach of not speaking with me prior to any action being taken. … there appears to be a division of opinion amongst the investigators as to whether just cause exists in the case of Dr. Maclure: although [the lead investigator] believed there is just cause, [the PSA investigator] has indicated that Dr. Maclure was operating outside the rules with the knowledge of his ADM, Robert Nakagawa and therefore there is the potential for a defence of condonation. Similarly, another Executive Director told us that he was “just informed” about the interview with, and the subsequent dismissal of, one of his employees. When we asked this Executive Director if he would normally be given noThe employment lawyer went on to note that although she tice of the interview, he said, “I would hope so.” Mr. Mattson’s former Executive Director gave the same had not been asked to provide legal advice on the issue, evidence that he was not consulted on the decision to “the defence of condonation is something that we have repeatedly raised as a possible defence including at the dismiss Mr. Mattson or the rationale. He said: group meeting which was held on August 23rd with the So … all I knew, there was some investigation. I investigative team and legal counsel …” would be needing to cooperate. I would be interThe unsolicited advice relating to condonation referenced viewed at some point, and … we just went along above was the only advice that LSB gave regarding the with it. But … the entire culture of … everything merits of the dismissals before they took place. Prior to sort of changed. I was asked to … collect Ron, he the dismissals, no one at the ministry or the PSA sought was [in Vancouver] for a conference. I was told to a legal opinion as to how the legal principles relating to get him, so I picked him up, drove him to his hotel condonation could impact the government’s position that to get his stuff and then drove him to the Harbour it had just cause to terminate the employees. There was Air [terminal] to catch a flight to … meet Barb to no evidence that the lawyers’ advice in relation to conbe terminated. donation was communicated to Mr. Whitmarsh prior to I have to this day not seen his letter of terminthe terminations. Mr. Whitmarsh’s evidence was that he ation. As his direct report, I was never – I was considered whether executives ultimately needed to be not consulted directly with, “Okay … this is the accountable for what he understood to be poor oversight evidence we found for Ron. What do you think? of practices within the ministry. On the issue of condon… What’s your take on this?”… To this day I’ve ation specifically he said, “it’s a complicated scenario and never seen any of that stuff. I … had no option but to rely on PSA.” 9.2.2.3  Involvement of Legal Services Branch On August 29, 2012, the employment lawyer gave the PSA As described in a Chapter 8, Legal Services Branch (LSB) Director case law relating to conflict of interest, breach lawyers met with investigators and the PSA Director on of fiduciary duties, and just cause. August 23, 2012. At that meeting, investigators gave the Also on August 29, 2012, after learning about the suspenfour lawyers in attendance (two employment lawyers, a sion of Mr. MacIsaac, the LSB employment lawyer sent Health and Social Services (HSS) lawyer and a civil litiga- an email to the PSA Director as follows: tion lawyer who had been assigned to the matter a few In relation to our last discussion about the co-op days earlier) an overview of the allegations relating to student – here is the case I mentioned about the conflict of interest and misuse of data. At least two of the loss of an apprenticeship. lawyers raised a concern that some of the conduct of the What is interesting is that in this case the Court employees under investigation had been condoned. This of Appeal confirmed the award of $25,000 for advice was unsolicited and was given verbally. “consequential damages” (see paras. 64 to 65) for On September 12, 2012, the employment lawyer briefed the loss of the apprenticeship on the basis that it her Supervising Solicitor on the file, noting that 161 162 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS was in the reasonable contemplation of the parties that a wrongful ending of his apprenticeship and ability to train as a journeyman would cause a setback in his career. This amount was is in addition to the damages for wrongful termination The email included a link to the court decision. The employment lawyer gave evidence that she provided this case law because she was concerned about the Ministry of Health terminating Mr. MacIsaac’s contract without being certain they had just cause to do so. Specialist, copied to the PSA Director and other legal counsel, attaching the revised dismissal letters. The covering email confirmed the scope of the PSA’s instructions to their counsel, as follows: As discussed, I confirm that you have not, at this time, sought our opinion as to whether the Ministry has just cause for the termination of these individuals, but rather our comments on the letter. Mr. Whitmarsh was not copied on this email. There is no evidence that he saw it or was made aware prior to On September 4, the PSA investigator provided the em- the terminations that the lawyers had not provided legal ployment lawyers with draft dismissal letters for Mr. advice on the merits of the terminations of Mr. Hart and Mattson and Mr. Hart and asked them to have a “look” Mr. Mattson. at the letters. The employment lawyer who took on this The LSB lawyers were not asked and did not review the task wrote to the other employment lawyer advising that dismissal letters for the included employees (Mr. Scott, she would like to have a call with the PSA investigator, Mr. Hamdi and Mr. MacIsaac) who were dismissed on and perhaps the PSA Director, to find out, among other September 6, 2012. We were told it was not the general things, if the PSA was seeking their opinion on whether practice at the time for LSB to be asked to review dismissthe Ministry had just cause to dismiss Mr. Hart and Mr. al letters for included employees. Mattson. The lawyer went on to say that if the PSA was seeking their opinion on cause, it would be helpful to have More than a month later, on October 10, 2012, the employment lawyer was asked to review Dr. R. Warburton’s additional information. termination letter. The PSA investigator sent an email to Later that day, the employment lawyers had a confer- members of the investigation team, the PSA Employee ence call with the PSA investigator and the PSA Employee Relations Specialist, and the employment lawyer, attachRelations Specialist. The PSA representatives told their ing a draft dismissal letter for Dr. R. Warburton. The PSA lawyers that they did not want legal advice about whether investigator instructed the employment lawyer to “edit/ there was just cause to terminate Mr. Hart and Mr. Matt- amend [the letter] as necessary.” son, but instead were seeking the lawyers’ comments on the draft letters. On that call, the lawyers noted that both On October 16, 2012, the PSA investigator asked the emdraft dismissal letters stated that Mr. Mattson and Mr. ployment lawyer when the revisions to the letter would Hart had acted in contravention of the E-Health (Personal be complete so that she could keep Mr. Whitmarsh “in Health Information Access and Protection of Privacy) Act the loop”. The employment lawyer indicated that she had and sought clarification as to which provisions of that Act been working on the letter and that she thought they could were engaged. The PSA representatives did not know finalize the letter for Mr. Whitmarsh by October 19. The which provisions of that Act applied. The employment employment lawyer noted that the letter contained a lot lawyers consulted an HSS lawyer for advice on the issue of detail and that it was “critical that the conclusions that and were informed by the HSS lawyers that the Act like- we draw from the emails and from other information we ly did not apply in the circumstances. The employment have gathered is supportable and reasonable.” She went lawyers told the PSA investigator and the specialist that on to note in her email to the PSA investigator that she the legislation was likely not applicable and removed the would like to: … go through the revised letter with you (and [the reference from the dismissal letters. The employment lead investigator] if available) paragraph by paralawyer made some other revisions to the letters. graph, together with the binder of emails that you On September 5, 2012, the employment lawyer wrote an sent me to make sure we are 100% confident in email to the PSA investigator and the Employee Relations CHAPTER 9 the point we are making; if not we should delete it (and I need your help with this as I have had trouble finding the emails that are reflected in the letter). the name) in which the number of grounds to include in the dismissal letter were discussed. Although no legal advice was provided on the issue of just cause, in the case of Dr. R. Warburton’s dismissal, Mr. Whitmarsh had the most justification for his belief that such advice had Late in the morning of October 17, 2012, the PSA investigator sent the employment lawyer copies of the majority been provided. of the emails referenced in the dismissal letter. Around 9.2.3  Analysis of Dismissal Process that same time, the employment lawyer had a call with The process that led to the dismissal decisions was flawed the PSA investigator and the lead investigator to discuss in a number of ways. First, we consider problems with the letter, and followed up the call with an email attaching the investigation team’s fact-finding. Second, we discuss a revised draft which included the revisions discussed on problems with PSA fulfilling its advisory function. Third, the call. we outline the legal advice that was provided and confuOn October 18, 2012, a draft of the letter was sent to an sion regarding that advice. Fourth, we outline problems outside law firm who had been retained by the ministry with the decision-making process itself. to defend Dr. Malcolm Maclure’s constructive dismissal claim and the grievances filed by the included employees. 9.2.3.1  Problems with the Investigation Team’s Outside counsel added a comment which was then includ- Fact-Finding ed in the letter, and the dismissal letter was sent to Dr. R. There were several problems with the investigative team’s fact-finding. For example, during employee interviews, on Warburton on October 22, 2012. a number of occasions, employees offered explanations When revising the dismissal letter for Dr. R. Warburton, for their conduct or provided information to contextualthe employment lawyer had more time and more access ize emails that were of concern. Investigators rejected to information than when she revised the dismissal letthe explanations of the employees without conducting ters for Mr. Mattson and Mr. Hart. However, she did not a considered analysis of the evidence because of their provide an opinion as to whether there was just cause view that the credibility of the employees was in doubt to terminate Dr. R. Warburton’s employment. The emfrom the outset.4 ployment lawyer said that when she received the draft dismissal letter for Dr. R. Warburton, the ministry had The investigation team should have spoken with all of the already decided to terminate her employment, nor was key witnesses who may have had relevant information she asked. She said that, as with the dismissal letters for about the employees and the allegations against them, Mr. Mattson and Mr. Hart, she understood that the PSA including the employees’ supervisors. As described in was only seeking her comments on the letter and that is Chapter 8, investigators sometimes failed to speak with why the PSA investigator instructed her to “edit/amend” supervisors within the Ministry of Health who could have provided explanations for the employees’ actions. the letter as necessary. The PSA investigator confirmed that she did not seek the employment lawyer’s opinion on whether there was cause to terminate Dr. R. Warburton. However, that was not Mr. Whitmarsh’s understanding. Mr. Whitmarsh recalled a conversation with a lawyer (he was unable to recall Where they did speak with the employees’ supervisors, investigators sometimes failed to ask critical questions.5 Sometimes the evidence of the employee was not accurately characterized to the supervisor. This meant that the evidence elicited from the supervisors was based on 4 See Chapter 8 for a more complete description and analysis of the interview process. 5 For example, when the investigators spoke to the Executive Director of the Drug Intelligence Branch in charge of the ADTI initiative on August 29, 2012, the transcript of the interview indicates that they did not ask him questions about the work of the contract manager (Ron Mattson) of the project, or about the project itself. 163 164 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS a faulty premise.6 They also failed to talk to the former Assistant Deputy Minister of the Pharmaceutical Services Division (PSD), Mr. Nakagawa, who would have provided valuable information regarding the impugned actions of some of the terminated employees. employee for cause. These factors apply equally in the case of excluded employees, and include:  1. The employee’s record 2. The employee’s length of service; An objective investigative report pertaining to a dismissal 3. Whether or not the misconduct was an isolated incident in the employment history of the employee should identify and describe the key documentary and oral evidence that was uncovered regarding the alleged 4. Whether the employee’s conduct was provoked in any way; employee misconduct whether inculpatory or exculpatory, and then describe how that information was assessed, 5. Whether the misconduct was spur of the moment or against the relevant public service standard, to inform its premeditated; conclusions. The Internal Review report drafts that the 6. Evidence that the employer’s rules of conduct, have team compiled in July and August 2012 did not meet this not been uniformly enforced, thus constituting a form standard, and no other report was completed. Developing of discrimination; a written report is considered a best practice in human resources because it imposes discipline on an investiga- 7. Circumstances negating intent; tion. In this case, a written report would have imposed 8. The seriousness of the offence in terms of employer a framework on the PSA investigator to systematically policy and employer obligations; and  summarize and assess the evidence rather than relying 9. Any other circumstances which the employer should on memory and off-the-cuff analysis through verbal comproperly take into consideration.7 munication with decision-makers. When the PSA specialist is considering recommending 9.2.3.2  Problems with the PSA Fulfilling Its Advisory termination of an excluded employee for cause, usually Function the PSA specialist, or sometimes the PSA Director, obtains There is supposed to be a separation of functions when legal advice as to the strength of a finding of just cause. a human resources investigation is conducted. Typically, For unionized employees, the specialist usually obtains the PSA investigator provides a copy of the written in- labour relations advice from a senior labour relations advestigative report to the Employee Relations Specialist visor at the PSA regarding the strength of a termination at the PSA. The specialist reviews the facts in the report, for cause. conducts an analysis as to whether the employee’s actions In 2012, the specialist in this case usually provided her anconstitute employee misconduct, and provides recommenalysis and recommendations to client ministries in writing dations as to what discipline, if any, is appropriate in the except in cases where there were no findings of misconcircumstances. In making recommendations, the specialist duct or the misconduct was relatively minor. Usually, the may consider the severity of the wrongdoing; the import of specialist would provide her analysis and recommendaany organizational condonation of the employee’s conduct; tions, any legal advice, and the investigator’s fact-finding the employee’s years of service and employment history; report to the decision-maker in a package that is comand any mitigating factors. monly referred to as “the binder.” The binder may serve The decision of the B.C. Labour Relations Board in the oft- as the evidentiary record for any disciplinary action. If the cited case Wm. Scott & Co. (Re) sets out a list of factors specialist recommends dismissal and a Deputy Minister that arbitrators, and by extension, employers, must take decides to terminate, the specialist would then draft the into account when considering whether to terminate an dismissal letters with reference to the information in the 6 For example, Dr. R. Warburton’s supervisor was asked about Dr. Warburton’s hiring of Mr. MacIsaac, when Dr. Warburton was not on the hiring panel. 7 WM Scott 1976 BCLRBD No 98 1977 CHAPTER 9 binder. In this case, the PSA specialist assigned to the need for a “customized” approach to this case. The PSA investigation did not discharge the advisory function she Director arranged the July 30, 2012 conference call with was supposed to fulfill. She did not review the factual the lawyers, investigators, and the Office of the Comptrolfindings of the PSA investigator, which were, at this stage, ler General. Throughout August 2012, she was in regular, if incomplete and not in the form of a written investigative not daily, contact with the PSA investigator and the spereport. The specialist did not consider what disciplinary cialist regarding the investigation. The PSA investigator action was warranted in the individual circumstances of told us that she did not do anything in the investigation each employee or obtain legal advice or labour relations without discussing it with the PSA Director and that the advice with respect to any recommendations. No binder PSA Director was “extremely involved.” was prepared for any of the terminated employees. The PSA Director was in regular contact with the employA number of factors interfered with the ability of the PSA ment lawyers who were taking their instructions from her specialist to fulfill her advisory function. She told us that and the lead investigator in relation to issues arising from the PSA investigator was fulfilling some of her job func- the investigation. The PSA Director, as well as the lead tions. The specialist also said that sometimes the PSA investigator, were setting the direction on the disclosure Director would step in and have discussions with the lead of particulars to the suspended employees, approving letinvestigator and the employment lawyer about issues that ters to the employees’ lawyers, and receiving legal advice the specialist would ordinarily deal with. She said she on process and damages issues. raised her concerns with the PSA Director but the PSA Dir- The PSA Director attended a number of key meetings ector did not take any action that she was aware of. The throughout August. She attended an August 15, 2012 specialist was concerned that “we were all kind of being “whiteboard meeting”, arranged and attended the August asked to do things that didn’t really make a lot of sense,” 23, 2012 meeting between investigators and various lawand as a result, she was “concerned about being able to yers, and attended a meeting on August 28, 2012, where do my job effectively because I didn’t have all the infor- the team discussed the issues around the termination of mation, the investigation wasn’t done. I couldn’t advise on Mr. Mattson. what to do when I hadn’t known what the findings were.” The specialist told us that she wasn’t always clear on Both the PSA specialist and the PSA investigator rewhat the PSA Director had said to other people involved called that the PSA Director gave them direction that in the investigation, and she was concerned about “not if Mr. Whitmarsh had already decided to terminate the employees, and did not want their advice, then their role being in the loop.” was to “support” him as the decision maker to carry out In this case, the PSA investigator did not prepare any the dismissals. The evidence that we obtained indicates investigation reports about any of the terminated employ- that the PSA Director’s instruction was consistent with ees. These reports were not prepared, in part, because the PSA’s practice at the time. The PSA has since changed of time pressure to terminate the employees quickly, and this approach. In this case, the PSA’s approach contributed because the team briefed Mr. Whitmarsh directly at the substantially to the problems with the process followed Friday meetings about the facts the team was finding. in reaching the dismissal decisions because the PSA did Further, at the time the dismissal decisions were made, not insist on following its own procedure and provide Mr. the investigation was incomplete and ongoing. Whitmarsh with appropriate written advice in relation to On July 23, 2012 the PSA Director returned from vaca- the terminated employees. tion. Following her return the PSA Director was involved The PSA Director told us that her involvement in the inin issues arising out of the investigation regarding the vestigation and the amount of control she exercised over disclosure of particulars and providing instruction to legal it was limited because of the involvement of the execucounsel. She discussed the investigation with the PSA tive. She said as the PSA Assistant Deputy Minister Bert specialist and the PSA investigator, and on July 26, 2012 Phipps and Ms. Tarras became increasingly involved, her she had a call with the employment lawyer regarding the role diminished. 165 166 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS As previously described, Ms. Tarras had several discussions with Mr. Whitmarsh about the investigation. In mid-August, Ms. Tarras indicated that either she or her ADM would attend the Friday update meetings with the Deputy Minister of Health. Ms. Tarras attended the Friday meeting on August 17 and Mr. Phipps attended at least one Friday on August 24 or August 31, but likely both. The PSA Director gave evidence that the involvement of the PSA executive in the investigation interfered with the ordinary PSA processes: Because I think there’s too many executive[s] involved calling the shots, sorry. Because [the employee and labour relations advisors are] not there, I’m not there, [the PSA investigator]’s only there as an investigator, really, not in that role to give advice. And it’s all coming down to a lot of people in the executive talking to one another. The Employee Relations Specialist said that her advice was not sought and that she did not feel it was her place to provide it. Like the PSA Director, the PSA specialist gave evidence that the involvement of the PSA executive interfered with the ordinary human resources processes: … and people above me, at every level knew, and if nobody’s putting a stop to it then …who am I do anything else? … I felt  … like I was uncomfortable, I felt like I didn’t have a handle at all on what was going on, that I was trying to kind of cobble things together based on –… write a letter, do this, or we’re firing people, and … there was no plan… it was just so chaotic. … Like for me I know why I didn’t … call Graham Whitmarsh directly, because my boss was aware of what was going on, her boss was, so was Lynda … and again I don’t know at what point Lynda [Tarras] was, but Bert [Phipps] was earlier. So if, you know, an ADM who’s been around for over 20 years isn’t calling to say, hey, there’s a problem here, … I don’t know what place it is for me to do that, when … I’m new in the job, and this is basically what we’re being told, so … but what do you do? The PSA specialist told us that she ended up performing administrative tasks rather than providing advice. She said that she was not part of the discussions when the dismissal decisions were made. She said her role was reduced to assisting with the implementation of the dismissal decisions, including assisting the PSA investigator with drafting the dismissal letters and arranging the meetings for the dismissals to take place. She said she had to rely on the PSA investigator to assist with the drafting of the dismissal letters because she was unfamiliar with the facts underlying the alleged misconduct. The PSA specialist explained her view to us of the flaws in the process: Like our investigations aren’t done. We don’t have findings. I can’t write a letter because I don’t know what’s happened. But I’m supposed to write a letter and have meetings with people terminating them from their employment when I don’t really know what they did. Like it was a complete train wreck. But – but – and there was so much pressure to do it quickly, and have everything happen, and like nobody said stop. To my knowledge. Another reason that the PSA did not provide advice in the ordinary course was the general consensus among investigators and the Deputy Minister of Health that the employee misconduct at issue was not only sufficient to justify dismissals for cause, but was serious enough to warrant the involvement of the Office of the Comptroller General, the Information and Privacy Commissioner, the RCMP, and the public announcement. Mr. Phipps described his perception of the seriousness with which the issues under investigation were viewed by the Deputy Minister, the executive at the ministry, and investigators as follows: … my perception at the time was that Graham felt that he was managing the crisis… I doubt that he knew any of these players. It wasn’t that it was something personal with him. …I believe he was under the genuine belief that this was a major crisis for Health and as the Deputy it was his job to put things right. … CHAPTER 9 … there were a lot of people involved in this. So you have got Graham Whitmarsh; you have got John Dyble; you have got the whole executive of Health. At no meeting did somebody stick their hand up and say, I think we are getting this wrong. You know, actually, I think we are overblowing this. There was nothing like that. The general consensus among the people involved in this investigation was that they were dealing with a serious crisis at the ministry, and that most of the employees who were terminated had committed acts that justified severing the employment relationship for cause. This widely held view did not abrogate the PSA’s responsibility to conduct a fair investigation and provide reasoned advice. a standing requirement on a Deputy Minister who was terminating an employee for cause to verify that a legal opinion had been provided. However, it was the usual practice of the PSA to seek written legal advice regarding dismissals of excluded employees for cause, and to provide that advice to the Deputy Minister. Sometimes, Deputy Ministers would, quite appropriately, follow up directly with the LSB lawyer to discuss the advice provided. In this case, the PSA did not seek, and the LSB lawyers did not provide, advice on whether the ministry had just cause to terminate the employees. LSB did not provide any legal advice on the merits of the dismissals of any of the employees who were fired, except that LSB counsel did verbally raise the issue of condonation at the August 23, Ms. Tarras pointed to a historical culture of “accountabil- 2012, meeting with investigators prior to the dismissals, ity of Deputy Ministers” within the public service. She provided case law related to loss of an apprenticeship said that it was up to Mr. Whitmarsh as Deputy Min- and appear to have spoken with Mr. Whitmarsh about ister to seek and obtain the advice he needed to fulfill the number of grounds of dismissal to be included in one his duties, and obtain adequate information to make a of the letters. There is no evidence that Mr. Whitmarsh decision. Ms. Tarras described for us the origins of the was aware the lawyers had concerns that the terminated PSA, the conscious shift of accountability for employee employees might rely on the defence of condonation. The discipline, including terminations, to line ministries and PSA did not seek further legal advice as to how the dethe supporting role PSA was to play. The organization- fence of condonation could impact the strength of the case al theory underlying this shift was described to us as that there was just cause to terminate the employees. “management for grownups”. However, once the ministry Mr. Whitmarsh was clear in his testimony to us that he sought the assistance of the PSA, the PSA was obliged understood that legal advice on whether the ministry had to follow its own investigative and advisory processes. just cause to terminate the employees was implicit in the It did not do that in this case. The PSA did not separate lawyers’ review of the dismissal letters. However, the eviits investigatory and advice functions. It did not insist on dence shows that the lawyers reviewed only three of the providing Mr. Whitmarsh with advice in the manner set six dismissal letters. The employment lawyer reviewed out by its own policies and procedures. The breakdown and revised the dismissal letters for Mr. Mattson, Mr. in PSA procedures contributed to the outcome. Hart, and Dr. R. Warburton. Legal counsel did not review the dismissal letters for Mr. Hamdi, Mr. MacIsaac, and Mr. 9.2.3.3  Legal Review of Dismissal Decisions Scott, as they were included employees, and the Legal While the PSA sought legal counsel’s input on the draft Services Branch was not usually involved in such cases. dismissal letters for Mr. Mattson, Mr. Hart, and Dr. R. No legal opinions were sought or provided on whether Warburton, it did not seek – and the lawyers did not pro- just cause existed in any of the six cases. vide – legal advice on whether the ministry had just cause to dismiss those employees. The PSA did not provide the With respect to the excluded employees, it is not surprisdismissal letters for the unionized employees to Ministry ing that Mr. Whitmarsh formed the mistaken view that LSB had provided legal advice about whether there was of Justice lawyers for review. just cause for termination. The PSA was the client that In 2012, there was no obligation on the PSA to seek legal the employment lawyer was billing during this phase of advice when it was considering recommending that an ex- the investigation and she was providing advice on employcluded employee be terminated for cause. Nor was there ment matters directly to the PSA. As described above, it 167 168 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS was the role of the PSA specialist, and sometimes the PSA Director, to obtain legal advice about terminations, and to provide that advice to the ministry. As a result, the email that the employment lawyer sent confirming that the PSA had not sought her opinion on whether the ministry had just cause to dismiss Mr. Mattson or Mr. Hart was sent to representatives of the PSA, and not to Mr. Whitmarsh. told the Deputy Minister – particularly given the scope and profile of these dismissals – the legal review of the excluded staff termination letters did not include legal advice on whether there was just cause to dismiss any of the employees. It is clear that Mr. Whitmarsh had been advised that at least some of the letters were reviewed by counsel. It is reasonable for a Deputy Minister to assume that substantive legal advice was implicit in such review. However, at least in the case of Mr. Mattson, the PSA investigator told him that there were not sufficient grounds to terminate Mr. Mattson for cause. As noted below, this should have at least caused Mr. Whitmarsh to pause and seek an explanation for the conflict between what he believed was implicit in the legal review of the Mattson letter and the express advice PSA was providing, dismissal process, which removed one additional potential safeguard on the decision making. Dr. Davidson raised concerns and attempted to obtain a briefing with respect to the employees in her division, but this request was rejected so that the dismissal could proceed prior to the September 6, 2012 press conference. Vacations at the end of August and early September 2012 diminished the involvement of other ADMs at a pivotal time. 9.2.3.4  Problems with the Decision-Making Process Mr. Whitmarsh did not seek written reports from the With respect to Dr. R. Warburton, the evidence indicates PSA with respect to the dismissals. A number of people that Mr. Whitmarsh knew that the PSA investigator had we spoke with noted Mr. Whitmarsh’s preference to not given Dr. R. Warburton’s letter to the employment law- receive information in writing in this matter. The lead yer, and he recalled participating in a discussion with the investigator told us that Mr. Whitmarsh “didn’t want any PSA investigator and a lawyer about what grounds for reports, any summaries prepared or presented to him dismissal to include in the letter. Although the lawyers at all.” She said, “we were to provide verbal updates.” did not provide advice on whether there was cause to These statements are generally consistent with the lack terminate Dr. R. Warburton, in those circumstances, it is of documents related to both the dismissals and the Friday understandable that Mr. Whitmarsh formed the mistaken meetings. Mr. Whitmarsh told us that he did not instruct view that the PSA was seeking a legal opinion on the the investigators to not prepare reports. He indicated that merits of the terminations, rather than asking the lawyer the only instruction he provided regarding documents reto edit the letter. lated to their retention; he told us that he directed that The thrust of the evidence from the PSA representatives no reports or documents should be retained by him or his that we spoke with was that they did not seek legal advice office, the ADMs or other Ministry of Health executive on whether there was just cause to terminate the employ- offices. He indicated that he told the investigators to reees because they understood that Mr. Whitmarsh had tain any paperwork. already made the dismissal decisions, rendering advice Further, whether or not they agreed with the decisions, unnecessary. the Assistant Deputy Ministers were not included in the It is unclear whether Mr. Whitmarsh knew that only the PSA reviewed included employees termination letters, and not LSB lawyers. Mr. Whitmarsh had an honest but mistaken belief that legal advice had been sought. As for the PSA, which now requires that legal advice be sought in instances of termination for cause, it should not only have sought legal advice, but it should have A further flaw in the decision-making process was the failure of the PSA and the Ministry of Health to consider the individual circumstances of each of the employees whose employment was terminated. Part of this was due to their failure to involve or consult with employees’ supervisors in their decision making. No proper consideration or weight was given to whether senior officials in the ministry had condoned the individuals’ conduct. No weight or meaningful consideration was given to their employment histories with the public service. No consideration was given to the possibility of without cause dismissals CHAPTER 9 or whether lesser disciplinary measures were appropri- As Deputy Minister, Mr. Whitmarsh obviously had to rely ate in the circumstances (leaving aside Mr. Mattson and on the work done by others in reaching his decisions. He Mr. MacIsaac). The fact that the terminated employees explained that “the Deputy Minister of Health is one of were painted with the same brush without analysis of the busiest jobs in this province, it’s overwhelming, it’s 100 their individual circumstances contributed to a flawed hours a week, it goes on from dawn till dusk, on hundreds decision-making process. of issues every day … it’s like you know 5,000 miles wide The evidence indicates that Mr. Whitmarsh viewed the and an inch deep.” actions of the dismissed employees as part of a larger, organized whole. On September 5, 2012, before the press conference, the HSS Supervising Solicitor provided her comments on the press release, and raised a caution about certain language in Mr. Whitmarsh’s speaking notes. Mr. Whitmarsh sent an email to counsel that stated in part: Most of the comments make sense to me. One [of] the major one[s] in my speaking notes around individuals working together; it’s really really clear from the emails that they are working together. Indeed there isn’t any separation between the core group. Despite these pressures arising from the breadth of his responsibilities, when acting as the statutory decision-maker with respect to terminations of employees for just cause, Mr. Whitmarsh should have put himself in the position to consider the investigative process and allowed sufficient time and distance to do so with an appropriately critical eye. Instead his active involvement and the manner in which he obtained his information from the lead investigator and the PSA investigator, and the setting of the September 6, 2012 deadline, contributed to the breakdown of the provision of employee and labour relations advice and production of the “binders” containing considered written advice for each individual. This, contributed to his misunderstanding regarding the extent to which labour relations and legal advice had been obtained on the merits of the dismissals. The pending press conference also impacted the dismissal process. Some witnesses told us that once the date of the press conference was set, investigators were under pressure to complete the investigation so that they could be included in the announcement to show that government had taken the matter seriously. Mr. Whitmarsh told us 9.3  Evaluation of Dismissal that he wanted to “deal with” as many of the employees Decisions as possible by that date where there was sufficient evidence to support the decision. The PSA investigator told We have described the investigative, advisory, and deus that she raised her concerns about the deadline with cision-making processes which resulted in the terminaMr. Whitmarsh several times but that no change was tion decisions. In carrying out our investigation, we were made. Four employees had their employment terminated bound by the motion of the Select Standing Committee the morning of the press conference.8 The Deputy Minister on Finance and Government Services, which require us to acknowledged that “there’s no doubt the date created investigate and report on “the decision to terminate itself.” pressure and I think, you know, there were some of the In order to fulfill that obligation, we considered it necescases where it put pressure on them to sort of get to a sary to investigate and assess whether the employees decision.” However, the September 6, 2012 deadline was who were terminated had engaged in misconduct, and if self-imposed. To the extent that the Deputy Minister re- so, whether that misconduct was sufficiently serious such quired more time to make considered decisions, he could that terminations for cause fell within a range of reasonable outcomes. In making an assessment as to the merits have taken it. of the terminations, we recognize that only a court or an 8 Ms. Kislock told us that Mr. Hart was not terminated until September 13, 2012, because she was away on September 6 and it was her responsibility to deliver the termination letter. It appears that Dr. R. Warburton was not dismissed until October 22, 2012, because on September 6 she and her legal counsel were still engaged with Legal Services Branch on the question of disclosure of particulars of the allegations against her and any relevant documents (see Chapter 8). 169 170 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS arbitrator could conclusively find whether the employees were wrongfully dismissed or whether the terminations were warranted. We also recognize that we are not bound by the same evidentiary rules which apply in the context of litigation and grievance proceedings, and that as a result we have reviewed and considered evidence that a judge or an arbitrator may not have had access to, including hearsay and privileged evidence. Victoria (UVic) as a visiting assistant professor. She joined the School of Public Administration in 1999, and she is currently an associate professor in that faculty. During her decade in the Research and Evaluation Branch of the Ministry of Health, Dr. R. Warburton’s role as a health economist included advising other areas of the ministry on evaluation; liaising with university researchers; designing, conducting and reporting on economic evaluIn the following sections, and in accordance with the re- ation studies of health care programs, procedures and ferral motion of the Committee, we assess the dismissal equipment; publishing results in peer-reviewed journals; decisions with respect to each employee who was fired. and making presentations at major conferences. During While, by necessity, what follows includes personal in- this time, she co-authored government policy on research formation about the affected employees, the discussion uses of linked health data and co-developed the Ministry in this section that follows (and, in respect of Dr. Maclure, of Health Program Evaluation Framework. that which is set out in Chapter 7) strives to disclose only On July 31, 2009, the Executive Director of the Policy such personal information as is necessary to explain the Outcomes, Evaluation and Research Branch (POER) of the findings. Pharmaceutical Services Division hired Dr. R. Warburton Based on the totality of the evidence that we reviewed, as Co-Director of Research and Evidence Development. It we have come to the opinion that, in relation to all of the was a part-time position allowing her to keep her position terminated employees, there was insufficient evidence as a faculty member at the University of Victoria. The of misconduct to conclude that terminations for cause other half of the position was filled by Dr. Maclure, who were correct or proper outcomes. Our assessment is con- had previously occupied the position full-time. sistent with the opinions of the lawyer who represented Dr. R. Warburton was well qualified to carry out the the province in the wrongful dismissal lawsuits that the responsibilities and duties of the role. In addition to her 10 excluded employees filed. That lawyer concluded that in years’ experience in the Ministry of Health, Dr. R. Warburall of those cases the province would not be able to prove ton contributed as co-investigator or principal investigator it had just cause for the firings. Those opinions are de- on numerous health care-related projects. Immediately scribed in Chapter 13. This section provides a description before she was rehired, Dr. R. Warburton was principal of the employees who were terminated, a review of the investigator on a grant from the BC College of Pharmagrounds for their terminations and our conclusions about cists, for a Coverage with Evidence Project (2008–2012) whether those grounds had a sufficient evidentiary basis and was a Michael Smith Foundation for Health Research to warrant terminations for cause. Scholar (2002–2008) where she worked in collaboration with the Vancouver Island Health Authority on a project 9.3.1  Dr. Rebecca Warburton entitled “Improving Patient Safety in Health Care: Costs 9.3.1.1  History of Employment with the Ministry of and Benefits Count.” Health In 2012, Dr. R. Warburton’s main responsibilities in the By 2012, Dr. R. Warburton had a long history with the POER branch were acting as chair of the Pharmaceutical British Columbia public service, including 13 years in the Services Research Team (PSRT) and assisting with draftMinistry of Health. She began her career with the public ing and finalizing information sharing agreements (ISAs) service in 1982 in the Ministry of Finance. In 1985, she for PSD-related projects. While the POER branch’s econowas in the Health Economics and Planning Branch and mists conducted its own research, the Drug Use Optimizthen in the Research and Evaluation Branch, where she ation (DUO) and Drug Intelligence (DI) branches also conremained for 10 years. In 1997, Dr. R. Warburton left the ducted research. As chair of the PSRT, Dr. R. Warburton ministry voluntarily to begin teaching at the University of assisted in coordinating the research priorities between CHAPTER 9 branches of the Pharmaceutical Services Division, and thus the team was focused internally within that division. The PSRT had no influence on the research priorities of the Ministry of Health generally or the work being done in other divisions, only on research in relation to PSD. Early on in her role on the PSRT, Dr. R. Warburton noticed that research priorities were not well organized. The PSD had up to three branches actively trying to do research, many projects were happening simultaneously, and there were limited resources. With a view to creating more structure, Dr. R. Warburton devised a prioritization tool to objectively categorize the various projects in a way that would best serve the division and balance questions of pharmaceutical effectiveness, safety and use. The tool allowed PSD to evaluate questions such as: whether the research supports a PSD policy whether the research aligns with therapeutic priority areas whether there is external pressure that makes the research a priority what the potential benefits and risks are what the potential PSD expenditure would be was suspended she was working on an evaluation plan for the ministry’s Smoking Cessation Program. The draft evaluation plan proposed a comprehensive evaluation of the program to evaluate to what extent it had successfully met its goals of reducing smoking, smoking-related health harms, and smoking-related use of health services. As a result of her employment suspension, Dr. R. Warburton was unable to continue her work on this evaluation plan. In the spring of 2012, Dr. R. Warburton had been working with the complainant on ISAs for several ministry projects. Dr. R. Warburton took on this task because the projects were stalled due to the amount of time it was taking the Data Access, Research and Stewardship group to complete ISAs.9 This in turn affected whether research could be completed. Dr. R. Warburton and the complainant had conflicting views on what information should go into the ISAs. On one particular project, the complainant had refused to work on the ISA, and Dr. R. Warburton had to take over the task. Dr. R. Warburton felt pressure to move the projects along and was frustrated with the delays in making data available for research. This is the context in which Dr. R. Warburton was working when the complainant made the allegations against her in March 2012. The prioritization tool had several functions. For example, it provided those individuals working in the various PSD 9.3.1.2  Analysis of Suspension and Dismissal Decisions divisions with direction on where to allocate their time When Ms. Walman, Assistant Deputy Minister of the Pharwhen juggling the various projects. It also provided an maceutical Services Division, suspended Dr. R. Warburton objective basis on which the decision-makers could make without pay on July 17, 2012 pending an investigation into informed decisions in relation to the projects. Although allegations of workplace misconduct, the suspension letter she had developed the prioritization tool, Dr. R. Warburton stated that the ministry had “significant concerns” about was not herself the effective decision-maker with respect “the misuse of health data and methods that contracts to which projects went forward, nor did she have spending were and are being awarded.” The letter did not set out authority or a budget. The effective decision-makers were any specific concerns about Dr. R. Warburton’s conduct, at the Executive Director and Assistant Deputy Minister and its wording was identical to that in letters sent to levels. The PSRT and, ultimately, decisions related to re- other employees. search prioritization and spending, etc., were overseen by Like Dr. Maclure, Dr. R. Warburton was an excluded emthe Pharmaceutical Services Leadership Team (PSLT), a ployee with no provision in her contract to allow the govteam made up of PSD Executive Directors and including ernment to suspend her without pay. The decision-maker a member from the Finance division. did not have evidence to support a decision to suspend Dr. Dr. R. Warburton was committed to the work of PSD R. Warburton’s employment, and did not consider whether and to advancing evidence-based decision making with- lesser disciplinary measures were appropriate. Although in the Ministry of Health. For example, at the time she this likely amounted to a constructive dismissal of Dr. R. 9 As described in general terms in Chapter 4. 171 172 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS Warburton from her employment had she taken that pos- made a number of factual errors. This can be attributed, ition, the Ministry of Health terminated her employment first, to the fact that investigators did not put many of those allegations to Dr. R. Warburton for a response, and in a letter dated October 22, 2012. The PSA investigator drafted the dismissal letter on the second, that the investigators did not impartially assess basis of information obtained by the investigators, and it the evidence they had uncovered. was signed by Mr. Whitmarsh. In that letter, the ministry For example, in the dismissal letter, the ministry characteralleged that it had just cause to terminate Dr. R. Warbur- ized Dr. R. Warburton’s role on the PSRT, which we have ton’s employment. The dismissal letter contained mistakes described above, to make it seem that she was influencing of fact, omitted or misconstrued information collected by the entire ministry’s research priorities. This was false the investigation team, and incorrectly applied relevant and misleading. Moreover, the ministry failed to take into standards. account the fact that Dr. R. Warburton was a part-time employee who continued to carry out her duties as a pro9.3.1.2.1  Investigative Process fessor at the University of Victoria. Investigators interviewed Dr. R. Warburton informally on June 12 and formally on August 1 and September 13, 2012. In the dismissal letter, the ministry pointed to an email The issues explored in the interviews included concerns Dr. R. Warburton sent in June 2010 where she directed about conflicts of interest between her obligations as another employee to provide data to an external individan employee, her professional interests as a research- ual without authorization. The factual basis on which the er and her private financial interests. Investigators also investigators analyzed this incident and attributed blame questioned Dr. R. Warburton about issues around data to Dr. R. Warburton was incorrect because the external access, contracting and hiring practices as well as sharing individual was authorized to receive the data in question. of personal or confidential information. Finally, the inves- Moreover, this person worked as a physician who was part tigators questioned Dr. R. Warburton about the work Mr. of a longstanding initiative with the Primary Care Branch MacIsaac performed in relation to the smoking cessation of the Ministry of Health’s Medical Services Division related to a core program within that branch. The “data” in program. question was only a list of this physician’s participants in As described in Chapter 8, Dr. R. Warburton, through her the program who had signed consent forms to allow the counsel, requested that the ministry provide disclosure of ministry to release their health records for the purposes documents in advance of the formal interviews. Contrary of the study. For some reason the investigators, who were to the legal advice they received, the investigators provid- unable to locate the signed consent forms that were refed limited disclosure. Because of the unwillingness of the erenced in this email, also determined the consents would PSA and the investigators to provide sufficient materials have expired, even though they had other evidence that in advance, Dr. R. Warburton declined to attend any fur- contradicted this conclusion. We found the signed consent ther interviews. Consequently, the ministry terminated forms inside several boxes of material collected by the Dr. R. Warburton’s employment without having put each investigation team. Not only did the investigators have allegation to her for a response. This was a significant the consent forms in their possession, the consent forms flaw in the fairness of the process, particularly since the had not expired. July 17 suspension letter stated that the employer would provide her “an opportunity to respond to the findings of Dr. R. Warburton’s role at the Ministry of Health involved the investigation and any recommendation regarding your liaising with external researchers with respect to PSD’s employment.” The Ministry of Health created expectations research priorities and interests. Notwithstanding that this role was clearly articulated in Dr. R. Warburton’s posof fair treatment that it then did not fulfil. ition description and supported by her Executive Director, 9.3.1.2.2  Dismissal Decision the dismissal letter also listed four incidents in which In identifying matters for PSA to include in the dismissal investigators believed that Dr. R. Warburton had provided letters, the PSA representatives and the investigators confidential ministry information to external individuals CHAPTER 9 without authorization. They appear to have discounted there is no such requirement to disclose such a distant evidence they obtained in the course of the investiga- familial relationship anywhere in public service standards tion that the information she shared was not considered or policy. There can be no justification for dismissing her confidential and that she was likely permitted to share it. based on this “failure” when it would not be apparent to In one case the investigators pointed to a “dream circle” a reasonable person that this connection would trigger document that Dr. R. Warburton had shared with external a conflict or apparent conflict of interest to begin with. stakeholders; in the same email, Dr. R. Warburton advised that the diagram was not public. Investigators interpreted this as an acknowledgement that Dr. R. Warburton should not have shared the diagram at all. Although the investigators never asked Dr. R. Warburton about this disclosure in her interviews, they did ask two Executive Directors in her division about it. Both agreed that disclosure of the diagram was acceptable and that it had in fact already been disclosed. One of these Executive Directors was the author of the diagram and explained in writing to the PSA investigator that it had been approved by Government Communications and Public Engagement for use in external presentations. Investigators appeared to discount the evidence provided by the Executive Directors and continued to assert that Dr. Warburton had inappropriately shared confidential ministry information.10 The letter also described Dr. R. Warburton asking, when she was applying to the Co-Director position, that the ministry not have a certain person on the panel because that individual might hold a negative view of her. The letter suggested that in making this request, before she was even a ministry employee, Dr. R. Warburton had somehow contravened merit-based principles of hiring. To the contrary, however, an impartial panel is directly relevant to the question of whether Dr. R. Warburton could expect to be assessed fairly in the competition. The investigators also failed to consider the evidence they gathered with respect to Dr. R. Warburton’s hiring, including that the individual Dr. R. Warbuton had expressed concerns about was never considered for the panel and that she was hired through a merit-based competitive process that later passed an audit conducted by the Merit Commissioner. The ministry also asserted that Dr. R. Warburton had given The dismissal letter also described Dr. R. Warburton’s Mr. MacIsaac access to her ministry IDIR account and lap- supposed “considerable influence” over the hiring of Mr. top, giving Mr. MacIsaac full access to her email and files. MacIsaac as a “conflict of interest” while also acknowIn fact, as Dr. R. Warburton explained to us, she gave Mr. ledging that she was not involved in the hiring process. Mr. MacIsaac the laptop to log on with his own IDIR.11 In any MacIsaac was Dr. R. Warburton’s student at UVic. While event, he would not have been able to access any data it was clear that the work Mr. MacIsaac was doing at the had he logged on with her IDIR as she did not have data ministry was intended to benefit PSD while also providing access. Given that Dr. Warburton did not have data access, impetus for his PhD research, this does not in itself amount her explanation appeared reasonable. Had she been given to a conflict. In fact, we heard that it is common and acthe opportunity to respond to this allegation the investi- cepted practice in government for employees to provide gation team could have received this same information. assistance and encouragement to co-op students who are Other grounds set out in Dr. R. Warburton’s dismissal letter also working on their PhDs. The lack of any analysis as to reflect a failure to appropriately understand and apply the what precisely the conflict was reflected a failure to apply a proper standard to the dismissal decision. Standards of Conduct. For example, the dismissal letter pointed to Dr. R. War- The ministry also suggested that Mr. MacIsaac was not burton’s failure to disclose to the panel that hired her that hired based on merit when this was demonstrably untrue she was Dr. Maclure’s second cousin by marriage, when – he was hired through a competitive process in which the 10 The “dream circle” was a diagram authored by one of the Executive Directors in PSD based on Health Canada’s “Life-cycle Management” diagram to represent pictorially this Executive Director’s personal vision of the regulatory life cycle for listing a drug in British Columbia. The Health Canada diagram on which it is based is found here:   11 An IDIR is the unique identifier government employees use to log on to their workstations and access many government applications. 173 174 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS hiring panel, which did not include Dr. R. Warburton, had concluded that he was the best candidate. One allegation was based on an email from 2010 on which Dr. R. Warburton was copied. In the email, an employee Finally, the dismissal letter alleged that Dr. R. Warbur- wrote that he had provided her husband, Dr. W. Warburton, ton had “routinely engaged in work with” her husband, with ministry data on a flash drive. The way in which the Dr. William Warburton. The evidence the ministry had to email was written suggested that this was done without support this ground was that Dr. R. Warburton assisted approval from the Director of Data Access, Research and her husband in drafting a Privacy Impact Assessment (PIA) Stewardship. Dr. R. Warburton then advised the employfor research work he was conducting for the proposed ee to delete his email. The investigators viewed Dr. R. “trajectories project” funded by the Public Health Agency Warburton’s instruction to delete the email as evidence of Canada (PHAC). Dr. R. Warburton was paid for this work, of misconduct. While such conduct was not itself a data which she performed on her own time. The proposed pro- breach, it would have warranted management attention ject was supported by the Population and Public Health if not adequately explained by Dr. R. Warburton. The probBranch who contributed no funding to it. Dr. R. Warbur- lem was that the investigators never put the allegation to ton’s supervisor knew she had conducted this work for her Dr. R. Warburton or the Director of Data Access, Research husband. Her supervisor did not consider her work in this and Stewardship. Without doing that, government’s ability regard to have placed her in a conflict of interest where to rely on the email as evidence of misconduct was limited the work was on a PIA for the health authority and where at best. When she spoke to us, Dr. R. Warbuton indicated the work was conducted on her own time. Because of the that she could not recall the specifics, and did not know nature of a PIA he also could not see how her working on why she would have asked for the email to be deleted, as she knew they were recoverable. it would create a conflict. The purpose of a PIA is to evaluate and manage privacy The other ground for dismissal related to the investigators’ impacts and to ensure compliance with privacy protection discovery that Dr. R. Warburton had shared a provision rules and responsibilities. There are no rights granted or from an external contractor’s contract with her husband, taken away in the PIA. It is an informational statement suggesting that he seek a similar provision in his own that will be presented to the privacy assessor about the contract. The language that Dr. R. Warburton provided steps that the researchers are proposing that could impact her husband was standard form language in respect of intellectual property rights and ownership of materials. privacy interests. The language she provided was publicly available and Dr. R. Warburton’s supervisor confirmed to us that while substantively the same as the language contained in the he does not remember exactly what he told the investi- Research Relationships Tool Kit. The language also was gators during his interview, his evidence to investigators consistent with the intent of the ministry that researchers would have been that he did not consider her work to be have the ability to publish their research in peer-reviewed a conflict.12 As with the other allegations of conflict of academic research. Further, when she provided this clause interest, investigators did not engage in a full analysis to her husband she copied ministry officials on the email. of this issue in light of the provisions of the Standards It was wrong for Dr. R. Warburton to have provided this of Conduct including whether this work was condoned contract language to her husband in this way, even though by the ministry. the language was ministry-approved and it was provided In the end, there were only two grounds for dismissal in with the knowledge of ministry officials. Where a ministry Dr. R. Warburton’s dismissal letter that had any possible employee holds a senior position and their spouse holds factual basis. As we describe below, those grounds were a contract with the same ministry, prudence demands insufficient to support the dismissal decision. that the employee have nothing to do with the spouse’s contractual dealings with the ministry. Dr. R. Warburton 12 The PSA did not have or, if it was recorded, retain, a copy of the supervisor’s interview audio recording, and provided us with only sparse, illegible notes. CHAPTER 9 should have exercised such prudence. However, given that the contractual language was publicly available and the other factors, this was not an act that could reasonably support a dismissal for cause. Health data to the researchers and contractors who were approved to receive it. 9.3.2.2  Analysis of Suspension and Dismissal Decisions Having carefully assessed each of the grounds that the The July 17, 2012, suspension letter stated only that the Ministry of Health relied on as the basis to terminate Dr. ministry had “significant concerns” about “the misuse of R. Warburton’s employment, we have concluded that most health data and methods that contracts were and are of the grounds were not supported by the evidence and being awarded.” The letter did not set out any specific were not true. With respect to the two grounds that did concerns about Mr. Mattson’s conduct, and its wording have an evidentiary basis, while they may have merited was identical to that sent to other employees. some direction from her manager and possibly even some Like Dr. Maclure and Dr. R. Warburton, Mr. Mattson was discipline, it was wrong to conclude that those actions an excluded employee with no provision in his contract were sufficiently serious to undermine the employment to allow the government to suspend him without pay. The relationship. The public statement that accompanied the decision-makers did not have specific evidence to support December 2015 settlement of Dr. R. Warburton’s litigation a decision to suspend Mr. Mattson’s employment. with government included an acknowledgment by her and her husband that “they did breach some rules and proced- At the time Mr. Mattson was suspended, investigators ures.” It is our conclusion that these two instances are were focused on the ADTI contract, which had begun as examples of such breaches. In light of all of the evidence a $25,000 direct award, and grew to approximately $2.3 we have considered, we have determined that terminating million. This concern came directly from the complainant. Because Mr. Mattson’s work supported the ADTI project, Dr. R. Warburton for cause was improper. the ministry suspended him on the basis of concerns about 9.3.2  Ron Mattson the ADTI contract, even though he had nothing to do with how that contract was negotiated. Moreover, as we have 9.3.2.1  History of Employment with the Ministry of described in earlier sections of this report, the increase Health in the amount of the ADTI contract was both planned and When Ms. Walman suspended Mr. Mattson without pay on July 17, 2012, he had worked in the Ministry of approved. To the extent that this formed a basis for Mr. Health for nearly 28 years. Throughout his long tenure Mattson’s suspension, it was factually incorrect. with the ministry, Mr. Mattson was well regarded by his In the suspension letter, the ministry also told Mr. Mattmanagers, co-workers and ministry stakeholders for his son it intended to take the necessary steps to review contributions to the ministry. For example, in an annual these concerns and that he would have the opportunity review, Mr. Mattson was described as an “energetic and to respond to the findings of the investigation and any conscientious employee [who] tackles his assignments recommendation concerning his employment. The minwith energy and enthusiasm.” Mr. Mattson was also noted istry directed Mr. Mattson not to speak with any external for his ability to “[recognize] the importance of a consulta- stakeholders or other ministry employees about the matter. tive approach to policy development and is always ready 9.3.2.2.1  Investigative Process to consider and incorporate input from others.” The investigators interviewed Mr. Mattson four times in In 2012, Mr. Mattson was a Special Projects Manager in the summer of 2012: once on June 14 and three times in PSD. His position included supporting the Alzheimer’s Drug August. During the August interviews, it is clear that Mr. Therapy Initiative (ADTI) as part of the Project Advisory Mattson was under investigation yet no investigator adCommittee (secretariat).13 In this role, Mr. Mattson was equately explained the allegations he faced. At the end of required to perform project and contract management for the first August interview, Mr. Mattson asked, “based on the project and facilitate the transmission of Ministry of 13 See Chapter 4 for further details of ADTI. 175 176 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS our discussion, I’m still not sure what I did wrong today?” he may have never used the access he had been given. During their interviews, the ministry investigators asked An investigator responded: Mr. Mattson about his data access and he indicated he did Yes, I mean the things, and again, as I said at not have any. When challenged on his answer, Mr. Mattthe beginning, today isn’t about conclusions, it is son explained that he understood the definition of data about gathering information so. The issues that in this context referred to personally identifiable health we raised with you are the issues that we have data, to which he understood he did not have access. He concern around. That is why we are looking for also said that if he had access to personally identifiable your input into that. And we will get back to you health data, that fact had not been made clear to him by if we think there is something that needs to be his Executive Director. Despite the answers he provided, addressed further. investigators concluded that Mr. Mattson’s answers were By the end of the third formal interview, investigators evidence of his dishonesty. were not any clearer with Mr. Mattson about the process or the allegations against him. Mr. Mattson asked “I just The ministry’s second concern ultimately formed the main wonder where we are at with all of this?” An investigator reason Mr. Mattson was terminated. Investigators believed that between June and July 2012, Mr. Mattson imresponded: properly tried to secure data access for Dr. W. Warburton As you can imagine, each time we meet, we have under the ADTI contract at a time when Mr. Mattson knew more information to go back and check. We did or ought to have known that Dr. W. Warburton’s data have a number of things that we did want to put access was suspended. At the time, Dr. W. Warburton back to you after we discussed the contract last had recently contracted with the University of Victoria to time. We have some more things to check and conduct some data analysis for ADTI. Mr. Mattson did not we will be in touch as soon as we can. have the authority to grant direct access to confidential Throughout the interviews, the investigators asked Mr. health data and he did not have the authority to approve Mattson about the development of the ADTI contract five data access for researchers or contractors. years earlier, without always giving him an opportunity to Mr. Mattson was asked about this matter in his first forreview the relevant documents. In at least one instance, mal interview. He clearly stated that he had not provided an investigator pressed him to provide specific answers any data to Dr. W. Warburton and was not aware that off the top of his head when it was clear he could not Dr. W. Warburton’s (“Bill’s”) data access was suspended: recall a matter. Investigator: So [a UVic employee] asked that the 9.3.2.2.2  Dismissal Decision data be provided to Bill. The investigators had two primary concerns about Mr. Employee: Right. But I couldn’t do that unless Bill Mattson. First, they believed that he had lied to them was an approved subcontractor and that is when when he denied having access to ministry data. Second, they sent me, whatever that conflict of interest they were concerned Mr. Mattson had taken steps to guideline thing that he signed. When I received evade the ministry’s data access controls by attempting that, I then asked, and they told me was then on to secure data access for Dr. W. Warburton in 2012 in contract, so then I asked our finance people to connection with the ADTI contract. make him an approved subcontractor. And I think The ministry investigators found evidence that appeared to show that Mr. Mattson was granted access to ministry data in 2009 and 2010. Although Mr. Mattson may have had some sort of data access after this point, the ministry investigators also learned there was no evidence that clearly showed that he had ever actually used the access he was granted. There was some evidence that I also asked Bob how would we then ensure that Bill was on the list, that we had to approve that ISA, but I’m not 100% sure. Investigator: Did you know that Bill had had his access cut off? Employee: No, I didn’t. CHAPTER 9 Investigator: You weren’t aware of that? Employee: I didn’t know until somebody came and told me that. The only one I knew, up until the day I was suspended, the only one who I knew who had any, was me. … Investigator: Did you actually send the information to Bill? Employee: No, we don’t have it yet. Investigator: You don’t have it? Employee: The data, no. Despite this evidence, investigators continued to believe that Mr. Mattson had inappropriately facilitated access to data for Dr. W. Warburton. Investigators assessed a series of emails to come to their conclusion. We reviewed the emails in question, and the investigators’ internal memoranda describing their understanding of these events, and we asked both Mr. Mattson and Dr. W. Warburton, as well as those investigating their conduct, about the matter under oath. Based on the evidence, we have determined that the investigation team’s conclusion was founded on an incorrect understanding of the facts. it related only to his work on the atypical antipsychotic drugs research. Moreover, it was entirely consistent with the direction in that letter that Dr. W. Warburton did not share its contents with Mr. Mattson. When the ministry investigators asked Mr. Mattson whether he knew Dr. W. Warburton’s data access had been suspended, he said that he did not learn about it until sometime after his own employment was suspended in July 2012. The ministry investigators had no information that contradicted Mr. Mattson’s evidence on this point. Despite this, and despite their instruction to Dr. W. Warburton to maintain the confidentiality of his data access suspension, the ministry investigators believed that Mr. Mattson should have been aware of both the suspension of Dr. W. Warburton’s data access and the details of this suspension. The evidence we reviewed showed that starting in June 2012, Mr. Mattson, Dr. W. Warburton and representatives from UVic began discussing the possibility of Dr. W. Warburton doing some analytical work on the ADTI project. The ministry anticipated that it would have finished compiling an ADTI dataset for UVic by the end of June 2012. By this time, UVic had contracted with Dr. W. Warburton to assist with some data analysis work on this project, As we described in Chapter 7, the Ministry of Health sus- which would require access to the dataset prepared by pended Dr. W. Warburton’s data access on June 11, 2012. the ministry. The ministry notified Dr. W. Warburton of this suspension UVic had the authority to hire Dr. W. Warburton to work on in a letter and simultaneously instructed him in writing to the ADTI project, but it also understood that it needed to keep the suspension confidential: add him to its official list of people entitled to receive the That cooperation includes maintaining the confiministry’s dataset before he could do any work. It asked dentiality on [sic] any information provided and Dr. W. Warburton to complete the necessary confidentirefraining from discussing the complaint or the ality forms and submit them to the ministry for approval review with Ministry employees or persons inside before the dataset was released. UVic, Mr. Mattson and or outside of your organization. Any attempt to Dr. W. Warburton all understood that the ministry had influence the outcome of the review by discussing to add Dr. W. Warburton to the approved list before he it with others may impact the result of the review could get access to the data. They also understood that and may be the basis of further action. Mr. Mattson did not have the authority to unilaterally add Dr. W. Warburton to the list of approved data receivers. The letter did not specify which data Dr. W. Warburton was no longer able to access, only that “his access to min- Thus, once Mr. Mattson received UVic’s request to add istry data” was suspended with immediate effect. After Dr. W. Warburton to the list, he forwarded it to the minhe received this letter, Dr. W. Warburton was still able to istry employee responsible for approving UVic’s request. log on to his ministry computer and access project files Moreover, when he forwarded the request, Mr. Mattson containing data, so it is understandable that he did not ap- specifically highlighted the fact that the request was to preciate the full scope of the data suspension. He believed enable Dr. W. Warburton’s access. 177 178 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS From the evidence we reviewed, it is clear that Mr. Mattson initially suggested that Dr. W. Warburton could receive the dataset in the event UVic’s primary contact was not available; however, Mr. Mattson very quickly realized (at the time he was writing the emails) that the ministry had not yet approved Dr. W. Warburton to receive the ministry’s dataset. As a result, he arranged with UVic for another approved person to be available to receive the dataset. Thus, the evidence clearly showed that Mr. Mattson expressly turned his mind to which individuals had the authority to receive the data, and he did not provide or attempt to provide the Ministry of Health dataset to Dr. W. Warburton before his authorization form had been processed. Based on a review of all of the evidence, we have determined that there is no evidence that Mr. Mattson engaged in any misconduct. We have also determined that the Ministry of Health had no evidence of any wrongdoing by Mr. Mattson at the time of his termination. Moreover, the decision to dismiss Mr. Mattson with just cause was arrived at through an unfair process. Mr. Mattson should not have been dismissed from his employment. We received evidence that at the time he decided to terminate Mr. Mattson’s employment Mr. Whitmarsh was advised that the ministry did not have sufficient evidence to constitute just cause. snarky comment about how conservative the PSA was and then said that nobody was getting a dollar from him and basically made some comment to the effect that let them sue … we’ve got unlimited funds, we’ll bury them in paperwork and they won’t be able to afford to take us on. On the question of whether just cause existed for Mr. Mattson, Mr. Whitmarsh said that the PSA investigator: … did not say to me that that he … should not be dismissed with cause. The discussion with him was that, I’m trying to use the right words here that, how to characterize it, that his was sort of less clear if you know what I mean, like there’s a there was cause but it was sort of like in that middle zone. Mr. Whitmarsh told us that Ms. Tarras suggested Mr. Mattson should be dismissed with cause, even if just cause did not exist, and the government could settle with him later. Ms. Tarras denied that she ever discussed the dismissal of Mr. Mattson specifically with Mr. Whitmarsh. She said she may have had conversations with Mr. Whitmarsh in the past about … the fact that … it’s your decision whether it’s for cause or not cause. And this is what would happen if you fire for cause – … you’d likely never [make] it to the courthouse anyway – … there would be a process of settlement that would happen before that. As described above, Mr. Whitmarsh asserted that the review of the dismissal letters by the Legal Services Branch – including the review of Mr. Mattson’s dismissal letter – The PSA Director told us that she attended the meeting constituted a legal opinion on the merits of the dismissals. during which the PSA investigator told Mr. Whitmarsh However, as already noted, the PSA investigator did not that the investigators did not have sufficient evidence to think there was just cause to terminate Mr. Mattson and support terminating Mr. Mattson for cause. She recalled that she conveyed her view to Mr. Whitmarsh. She told us, that Mr. Whitmarsh indicated at that meeting that the min“the one time I offered an opinion on Mr. Mattson, it was istry had unlimited resources and Mr. Mattson could sue. shut down really really quickly and frankly embarrassingly.” The PSA specialist told us she recalled a meeting with inThe PSA investigator told us: vestigators and the PSA Director regarding “how to make It would have been sometime towards the end of August … because Graham’s whole thing was that everybody was getting terminated, and I said if you’re going to terminate Ron I think it should be without cause … because like then you pay him because I don’t think that we have anything on this guy, and Graham said made some cause for Ron Mattson:” … we had a whole meeting about Mattson where we – like myself and [the PSA Director] and the investigation team, where like the purpose of the meeting was Graham Whitmarsh has decided we’re firing Ron Mattson for cause, let’s figure out what we’re going to put in the letter. Like it CHAPTER 9 was – it was just absurd. You know, so like do I – like we all knew that there wasn’t cause, but – but Graham made the decision that that was what was happening, so… The PSA specialist’s recollection about this meeting is consistent with the handwritten notes she took at the time. As I have noted in Chapter 2 and earlier in this chapter the Ombudsperson Act prevents me from investigating an act or omission of legal counsel for an authority. This limitation has raised a complication in this case because Mr. Whitmarsh has taken the strong position that if Ministry of Justice lawyers thought there was a problem with any of the proposed dismissals, including Mr. Mattson’s dismissal, they should have told him directly, rather than providing advice to PSA, particularly if the lawyers were only giving limited advice. Whether or not that criticism is valid - an issue on which I make no comment and which I am prohibited by law from investigating - it does not in my view absolve the deputy minister from being responsible to have sought to resolve the conflict between his belief in what was implied in counsel’s review of the letter, and the express opinion he received from the PSA representative that there was probably not cause to dismiss Mr. Mattson. On this issue, I am satisfied that Mr. Whitmarsh did not take this step because he decided to terminate Mr. Mattson for cause anyway, with a view to a possible settlement later. Mr. Whitmarsh gave evidence that this can be an effective strategy, because “the reason people settle is because they don’t want to take on government,” and because the government has “bottomless pockets and an unlimited number of lawyers.” complex statistical analysis and economic modelling projects and advising senior executives on the results of his work. Mr. Hamdi was one of the most experienced employees in terms of using the ministry’s administrative health data. Unlike many other analysts who only had experience with one or perhaps two databases, Mr. Hamdi had experience in many. His cross-database knowledge allowed him to conduct more complex analyses and to provide results quickly. As Mr. Hamdi’s Assistant Deputy Minister, Dr. Davidson, told us: … he was helpful and knowledgeable about the databases. And many of the other people that worked there only knew a single database, whereas Ramsay seemed to have a broader knowledge than other of the analysts, and he was viewed as helpful … he knew all of the databases in a way that was … unique in the ministry. It was evident from the records we reviewed, and the individuals we spoke with during our investigation, that Mr. Hamdi did work with data – putting together datasets and conducting analyses – that no one else knew how to do. In this respect, he provided a valuable service to both ministry employees and the contractors who required ministry data and were entitled to receive it. 9.3.3.2  Analysis of Suspension and Dismissal Decisions The investigation team first turned their attention to Mr. Hamdi in late June 2012 as a result of the emails that they were reviewing. The investigators’ early suspicions about Mr. Hamdi were based on the perception that Mr. 9.3.3  Ramsay Hamdi Hamdi had a personal relationship with Dr. Maclure, Dr. R. Warburton and Dr. W. Warburton outside of work and 9.3.3.1  History of Employment with the Ministry of they received confidential information from Mr. Hamdi. Health Mr. Hamdi was a valued, longstanding public servant. An early version of the July 6 draft of the Internal Review When the Ministry of Health suspended and then ter- report included references to this allegation. The investiminated Mr. Hamdi’s employment in 2012, he had been gation team requested Mr. Hamdi’s emails for review on July 11, 2012. employed with the ministry for 28 years. Mr. Hamdi was a senior economist in the Modelling and As we have described in Chapter 8, the ministry notified Analysis Branch of the Planning and Innovation Division. Mr. Hamdi that his data access was suspended on July He was responsible for conducting a wide variety of eco- 27, 2012. The suspension letter informed Mr. Hamdi that nomic analysis and research to support internal decision his role in research and data access was being included making. His tasks included designing and implementing in the ministry’s ongoing investigation and that he might 179 180 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS ultimately be subject to disciplinary action. Five days later, The interview transcripts and recordings demonstrate that on August 1, 2012, the Ministry of Health suspended Mr. the interviewers were suspicious of and did not believe Mr. Hamdi. The interviewers’ approach was sometimes Hamdi from his employment without pay. It appears that Ms. Kislock formed the view early on that disrespectful and patronizing. They asked questions out of Mr. Hamdi was engaged in serious misconduct. There context or without providing the relevant documentation were reasons to be concerned about Mr. Hamdi which to Mr. Hamdi, despite his requests. In one instance – in justified a detailed review. On August 1, 2012, Ms. Kislock response to his request to review a document – the interviewer told him, “You can’t say ‘show me this and then I wrote to the lead investigator: will tell you.’ We are asking you a question.” The data Ramsay is sharing is pharmaceutical inThe investigators questioned Mr. Hamdi about a particular formation – that is subject of approval of the Data email (discussed in greater detail below) but only someStewardship Committee. Not only is he violating times had that email in front of them. This carelessness ministry data stewardship rules – he is breaking in presenting Mr. Hamdi with the actual document sugthe law. gested that the investigators thought the specific wording Ms. Kislock’s view of Mr. Hamdi was consistent with that of the email was irrelevant. However, the wording of the of the lead investigator. For example, the RCMP notes of email was important to understanding its meaning. a conversation with the lead investigator in July 2013 indicate that she described Mr. Hamdi as a “data access 9.3.3.2.2  Dismissal Decision dealer.” On September 6, 2012, the ministry provided Mr. Hamdi with a suspension pending recommendation for dismissal 9.3.3.2.1  Investigative Process letter, signed by Mr. Sidhu on behalf of Mr. Hamdi’s AssistThe ministry did not interview Mr. Hamdi until August ant Deputy Minister, Dr. Davidson, and a dismissal letter 16, 2012. During the more than two weeks between his signed by Deputy Minister Whitmarsh. The suspension suspension and his first interview, he was not informed pending recommendation for dismissal letter provided about the allegations against him or provided with any more details about the alleged misconduct, while the information that would assist him to respond in the inter- dismissal letter itself included nine grounds for dismissal. views. Investigators then interviewed Mr. Hamdi three As discussed earlier in this chapter, Dr. Davidson was not times prior to his dismissal on September 6, 2012: August aware, until we interviewed her in the fall of 2016, of the 16, 24 and 30, 2012. Investigators interviewed him about letter drafted and signed in her name. various projects that he worked on and asked how he All of the allegations set out as grounds for dismissal relatshared and stored data for those projects. ed to Mr. Hamdi’s use of data. The dismissal decision did The way in which the interviews were conducted did not not factor in the generally deficient data practices at the provide Mr. Hamdi with a full and fair opportunity to re- ministry, which were later highlighted by the Information spond to the allegations against him. and Privacy Commissioner in her report that we discuss in Some of the investigators’ questions were focused on Chapter 10 and by an independent analysis conducted by specific allegations, which we describe below. Other Deloitte. The dismissal letter was critical of Mr. Hamdi in questions were broad in scope. A large focus was Mr. a manner which was unfair, given the lack of appropriate Hamdi’s personal relationships with various individuals al- policy and practice at the ministry at the time. As such, ready under investigation. Based on the questions that the the alleged grounds did not constitute a reasonable basis interviewers asked and the conclusions that they reached on which to terminate his employment. to substantiate their allegations, it is apparent that the The first allegation was that on June 19, 2008, an external interviewers had a fundamental misunderstanding of Mr. researcher, Dr. W. Warburton, offered Mr. Hamdi up to Hamdi’s role at the ministry with respect to his access to $2,000 in relation to data access. The exact language of and use of data, both in what he was explicitly authorized the email was: to do and what was expected of him in that role. CHAPTER 9 I have approval to spend up to $2000 on you to help us with access to data. We don’t need a contract. You can just invoice us. Set up a meeting with you, me and [another employee] as soon as possible after he gets back. There was no indication that any other steps were taken beyond the proposal. The evidence indicates that Mr. Hamdi’s services were never used, no work was done and no money was given or received. The email represented a preliminary inquiry only and there was no attempt to The suspension pending dismissal letter stated that al- conceal it. Mr. Hamdi included a Director, Mr. Hart, in though Mr. Hamdi denied receiving any such monies, he the email conversation about the offer because he was did not inform his supervisor of the offer nor was there ultimately responsible for responding to data requests. evidence that he did not take the external researcher’s This was completely appropriate and indicated that he offer. Many of the investigators and Ministry of Health believed the offer to be legitimate. Mr. Hart’s response executives whom we spoke with cited this as one of the to the request that he didn’t “want to get in the middle of more serious events of alleged misconduct discovered in anything until a formal request is initiated” also indicates that he viewed this as a legitimate data request which the investigation. would have to follow appropriate data request procedures. Investigators did not take the steps necessary to understand and assess this email. The email is short and suf- In his interviews with the investigators regarding this ficiently vague that several interpretations are possible. allegation, Mr. Hamdi’s union representative challenged Faced with many potential explanations, investigators the investigators on their failure to put forward evidence should have investigated further. Instead, they jumped to support their assertion that the interviewee was guilty to conclusions, reaching the most pejorative interpretation. of the alleged misconduct. One of the investigators responded, “we have no evidence that he took money, but Investigators did not appropriately consider evidence we have no evidence that he didn’t.” However, Mr. Hamwhich was relevant to assessing whether the email di had just provided evidence during the interview to demonstrated potential misconduct. For example, the in- support a conclusion that he not engaged in the alleged vestigators did not interview the external researcher and misconduct. The investigators had no other contradictory therefore did not obtain information about his intention in evidence. sending the email and whether the offer was to compensate the ministry for time spent to prepare the data for re- It was apparent that the investigators had made up their lease, pay Mr. Hamdi to work privately for the researcher minds early in the investigation that this email was evicollecting non-ministry, publicly available data, or offering dence of the contractor trying to buy data from Mr. Hamdi. Mr. Hamdi money to improperly release confidential min- This theory was based entirely on conjecture but it was istry information. The first of these two scenarios would consistent with the investigators’ more general belief that Ministry of Health employees were selling ministry data not be improper. The third would be highly improper. (as discussed in earlier sections of the report). When investigators interviewed Mr. Hamdi about the email, he was clearly unsure about its meaning, in part Had the parties to the email wished to pursue the probecause he did not write the email and because it was posal and had there been something inappropriate about four years old at the time. Ultimately, the investigators it, the ministry would have had the opportunity to stop determined that Mr. Hamdi engaged in misconduct merely it or to amend the proposal to make it acceptable to the ministry, given that it had already been raised to a Director. by virtue of being a recipient of the email. Likewise, had Mr. Hamdi seriously considered doing such It would have been reasonable, indeed advisable, for the contract work, he could have sought permission through investigation team to investigate the matter further be- his supervisor and executives. cause of the range of possible interpretations of the email. Investigators needed to properly obtain and evaluate infor- Mr. Hamdi’s employment was terminated in part because mation in order to fairly assess the email and Mr. Hamdi’s the investigation “conclusively established” that: “You were offered money for access to data and took no disconduct. No one gathered any additional information. cernable steps to appropriate [sic] address the same.” This 181 182 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS conclusion was made despite the fact that the team had own research and to which he eventually received full undisputed evidence from Mr. Hamdi that their interpret- access. ation of the email was wrong, and undisputed evidence No one asked Dr. W. Warburton about this exchange with – from the email chain itself – that he notified a supervisor Mr. Hamdi. In fact, neither Mr. Hamdi nor Dr. W. Warburof the offer. As such, it was wrong for the investigation ton was aware of what the ministry was alleging or that team to make this finding of fact and for the ministry to this incident was one of the “breaches” that was reported assert that this constituted a ground for dismissal. to the OIPC and contained in its report. Consequently, the The Ministry of Health also alleged that in 2010, Mr. Hamdi investigators and the ministry were not able to identify the inappropriately released a flash drive containing person- context within which this exchange occurred in order to ally identifiable data to Dr. W. Warburton without having accurately evaluate the appropriateness of the exchange, the proper approvals in place. The incident is described including whether the exchange did in fact constitute a in detail in Chapter 10 of this report and is the second privacy breach. incident described in the June 26, 2013, report of the Infor- Our conclusion is that sharing this data with Dr. W. Warmation and Privacy Commissioner. Mr. Hamdi’s suspension burton was a privacy breach because Dr. W. Warburton pending recommendation for dismissal letter stated that: did not have explicit authorization from the ministry to Not only did you release this information to Mr. [sic] Warburton, you warned him to “tread carefully” as the Employer was not aware that he yet had access. I note in particular that Mr. Warburton is an admittedly close friend of yours. possess this data. However, there are several mitigating factors that the ministry should have considered, all of which would indicate that the incident did not amount to just cause for ending Mr. Hamdi’s employment. Specifically, he was using the data to refine a statistical analyAs described in Chapter 7, Dr. W. Warburton had a con- sis tool he was developing as part of his employment. It tract with the Primary Care Branch of the Medical Servi- appears that providing data to Dr. W. Warburton was in ces Division of the ministry to conduct research related furtherance of his own duties as a public servant. It does to atypical antipsychotic drugs. Mr. Hamdi’s supervisor not appear that Mr. Hamdi was attempting to give Dr. W. had instructed him to work with Dr. W. Warburton on Warburton data access for Dr. W. Warburton’s own use. the project as Mr. Hamdi had already been doing related Further, we heard from several witnesses that ministry work for the Primary Care Branch on atypical antipsychotic practice was to view and treat contractors the same as drugs. At the time of the incident, Dr. W. Warburton was employees. This is consistent with the 1999 Data Access two months into his contract with the ministry; however, Policy, which was in place at the time. Because Dr. W. Warburton was under contract with the ministry at the his data access had not yet been approved. Related to but separate from his own contract deliverables, time of the incident, it was consistent with policy and Dr. W. Warburton had been assisting Mr. Hamdi on the de- practice for Mr. Hamdi to approach Dr. W. Warburton for velopment of a statistical analysis tool. The pair was using assistance with his work. Dr. W. Warburton was under atypical antipsychotic drugs data to test the code that Mr. the same duty of confidentiality as Mr. Hamdi. Moreover, Hamdi had written for the tool. Mr. Hamdi gave the drug at the time, data handling policies throughout the ministry data containing personally identifiable information to Dr. were lacking, so it was unfair to single out Mr. Hamdi for W. Warburton so that he could test the reliability of the significant discipline based on this particular incident. code with a different statistical program that Mr. Hamdi did not use. This data transfer was for the sole purpose of testing the code and not for Dr. W. Warburton to use in carrying out his own work under his contract. The data set was a relatively small sample and related only to one atypical antipsychotic drug. It contained a fraction of the information that Dr. W. Warburton needed to conduct his The ministry also alleged that Mr. Hamdi had inappropriately released personally identifiable data on a flash drive to Mr. MacIsaac at the request of his PhD supervisor. Mr. MacIsaac was a co-op student evaluating the ministry’s smoking cessation program. Dr. R. Warburton was his supervisor at the ministry and was planning to be CHAPTER 9 his PhD supervisor once Mr. MacIsaac’s thesis proposal was approved. for Mr. Hamdi to assist a co-op student when he was requested to do so by a Director such as Dr. R. Warburton. Mr. Hamdi provided a flash drive containing Ministry of Health administrative health data linked to federal Canadian Community Health Survey (CCHS) data to Mr. MacIsaac.14 Mr. MacIsaac had been authorized to access both the ministry’s administrative health data and the CCHS data for his ministry work. Investigators, however, believed that he was also using the data for his PhD without authorization. As we have discussed elsewhere in the report, it is our view that the determination of Mr. MacIsaac’s intended use was not supported by the weight of the evidence. Further details of this incident, which is the third incident described in the Information and Privacy Commissioner’s June 2013 report, are described in Chapter 10 of this report. We heard from Executive Directors that they would generally encourage their staff to assist a co-op student, even in a different division, if a need were identified and it would not take up too much of their time. In this case, Mr. Hamdi provided evidence in his interviews with the investigation team that it did not require a lot of his time. Though accessing data through Mr. Hamdi was not the formal process within the ministry, it was not uncommon for staff such as Mr. Hamdi, who regularly worked with data, to link data and hand it over to another staff member. This practice was consistent with common ministry practice at the time and was later flagged for improvement in the Deloitte report. As Mr. Hamdi’s Assistant Deputy Minister, Dr. Davidson, described to us, in 2012 there were no clear Mr. Hamdi’s suspension pending recommendation for dis- rules for having analysts pull data for internal use and missal letter stated: analysis. Even as the Assistant Deputy Minister, she often was not able to get access to what she wanted or needed, Not only did you fail to ensure there was a data calling data access a “black box” and that the process for sharing agreement for Mr. MacIsaac to have obtaining access was relationship driven. In her words: this information, your involvement in providing assistance to Mr. MacIsaac (which occurred over … people had relationships with different analysts several months) was outside the bounds of your who were helpful or not helpful. job duties and expectation; you had no authority … to assist Mr. MacIsaac in any manner. And many of the other people that worked there It was wrong for the ministry to rely on this incident as a only knew a single database, whereas Ramsay ground for dismissal for two reasons. seemed to have a broader knowledge than other First, the investigation team erred in its assessment of of the analysts, and he was viewed as helpful. the incident. Mr. Hamdi ultimately provided the flash drive And so I know that [my analyst] worked with him. with the linked information to Mr. MacIsaac, however Mr. Because even though I had my own analysts, they MacIsaac did not intend to use it for any external research couldn’t pull data, they had, still had to go and get purposes. Mr. MacIsaac was allowed to receive the data, the data from that division – but then they could as a co-op student. Mr. Hamdi provided the data to Mr. – when they had the data, they could manipulate MacIsaac for his ministry work. Mr. MacIsaac’s PhD was it. They knew how to manipulate it and do their own – do analyses for us. But they didn’t have still in the proposal phase, and moreover, he intended to direct access to it. use anonymized data for his thesis. Second, given that the data was only intended for internal use, for which it was authorized, it was not unusual given the internal information management practices at the time … 14 According to the Government of Canada, “the CCHS is a cross-sectional survey that collects information related to health status, health care utilization and health determinants for the Canadian population. The survey is offered in both official languages. It relies upon a large sample of respondents and is designed to provide reliable estimates at the health region level every 2 years…. The primary use of the CCHS data is for health surveillance and population health research.” Statistics Canada, “Canadian Community Health Survey - Annual Component (CCHS)” . 183 184 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS – in, in those days that was the process; you had to find an analyst that would pull the data for you. format (SAS) to another (STATA) for Mr. MacIsaac, not for Dr. W. Warburton to use the data for his own work. The Dr. Davidson confirmed that this was “common practice” evidence the investigation team had gathered at the time in the ministry at the time. As we have described in earlier was that once the file conversion was complete, the data chapters of the report, both the lead investigator and was deleted from Dr. W. Warburton’s computer. Ms. Kislock, the Assistant Deputy Minister responsible Again, Mr. MacIsaac’s perspective on the incident that for data stewardship matters, understood that in 2012 the he provided to his union representative at the time is ministry’s general practices with respect to data handling illuminating: needed improvement. Ramsay installed the data tables onto my work Mr. MacIsaac shared his perspective on Mr. Hamdi’s assistance in an email to his union representative: With Rebecca’s approval, I asked several data experts with the Ministry to help me out. Ramsay Hamdi is the most experienced data expert in the Ministry, and eventually I sought him out to help me. It was Ramsay’s kind heart that he decided to help me out. He created several data tables for me, and which are stored on my computer. station’s computer at the Ministry of Health. Several of the tables were converted to STATA (a statistical software format to which I am most familiar with in data analysis). To do that conversion, though, Bill Warburton (a contractor in Primary Care, I believe), was asked to convert the tables from SAS to STATA. Bill had a StatTransfer program on his computer that could make the table conversions for me. Ramsay and I were present when Bill did these conversions, and all traces of the data files were removed from Bill’s computer after the conversion — as far as I am aware. The Ministry of Health also alleged that Mr. Hamdi uploaded a flash drive containing administrative health data onto Dr. W. Warburton’s work computer despite being aware that the ministry had suspended Dr. W. Warburton’s The suspension and dismissal letters also asserted that Mr. data access. This event, which was to assist Mr. MacIsaac, Hamdi had inappropriately provided data to an external retook place after Dr. W. Warburton’s data suspension but searcher who had been working with Dr. W. Warburton on before his contract dismissal. Dr. W. Warburton’s evidence his atypical antipsychotic drugs research. This researcher was that he did not understand that the ministry had com- requested Mr. Hamdi’s and Mr. Scott’s assistance after pletely banned his access to ministry data. He believed the Dr. W. Warburton’s data access was suspended. As dedata access suspension was project specific, and related scribed later in this chapter, Mr. Hamdi and Mr. Scott only to his work on the atypical antipsychotic drugs con- had both been working with Dr. W. Warburton and the tract. He explained that his logins for ministry databases external researcher on this project for over a year; such were suspended; however he still had access to the LAN assistance was approved and directed by ministry staff drives, some of which he shared with Mr. Hamdi and at the Executive Director and Assistant Deputy Minister which contained personally identifiable data. Moreover, he level. The extent to which the ministry had authorized Mr. had been instructed not to discuss the details of his data Hamdi to assist the external researcher was reflected in suspension with anyone. It was unreasonable to expect a paper that Mr. Hamdi and Mr. Scott co-authored with 15 Mr. Hamdi to be aware of or understand the details of Dr. the external researcher. W. Warburton’s data restrictions given Dr. W. Warburton’s The researcher requested the data because she had been own understanding of the restriction and the fact that he selected to deliver an oral presentation to a medical assowas told not to discuss it. ciation based on an abstract that she had developed with Further, the investigators failed to consider the reason Dr. W. Warburton and with the assistance of Mr. Hamdi for the upload, which was to convert the files from one and Mr. Scott. The abstract was also to be published in a medical journal; however, it was never published 15 Rebecca Ronsley et al., “A population-based study of antipsychotic prescription trends in children and adolescents in British Columbia, from 1996 to 2011,” The Canadian Journal of Psychiatry 57, 1 (2012). CHAPTER 9 because of the data suspensions and investigation. Before first time that she had reviewed the letter or was aware the presentation and the publication of the abstract, she of what the allegations were. needed to ensure that the data was available to one of Dr. Davidson consistently commented that the evidence the co-authors if the reviewers came back with questions. relied on in the letter was insufficient to support the alShe noted in an email that “ethics requires that someone legations. Moreover, she said that email evidence that the on the team can verify the data for 5 years if questions investigators showed her before Mr. Hamdi’s data suspenarise.” The requested data was aggregate data on dia- sion was vague and that she would have required more betes outcomes in relation to atypical antipsychotic drugs, information before reaching such a conclusion. She did and had also been previously provided to the external not know whether the investigators had gathered more researcher. In his interviews, Mr. Scott explained that the information in support of their conclusions. Dr. Davidson’s data requested by the researcher were summary tables comments that she would have sought more information and charts. Moreover, the investigation team did not have before signing the suspension pending recommendation evidence of either Mr. Hamdi or Mr. Scott providing any for dismissal letter is significant. data, even in summary form, to this external researcher. She also confirmed that she would not put any weight on Twice the suspension pending recommendation for dis- the fact that Mr. Hamdi was friends with his colleagues. missal letter noted that Mr. Hamdi had a close friendship She specifically noted that Mr. Hamdi’s practices with with someone that he worked with and who was also respect to data and his participation in ministry work apparty to one or more of the allegations. The comment is peared to have been consistent with ministry practice and, irrelevant. As Mr. Hamdi’s union representative correctly specifically, the practice of other economists. Finally, she pointed out more than once during the interviews, there is stated that even if the grounds listed were true, in her nothing in the Standards of Conduct that says colleagues view, they would not amount to the level of misconduct cannot also be friends outside of work. A personal rela- required for dismissal. tionship is not, in itself, grounds for suspicion, let alone We believe that Mr. Hamdi acted inappropriately in 2010 dismissal. when he provided Dr. W. Warburton the personally idenAnother important consideration in assessing Mr. Ham- tifiable data so Dr. Warburton could assist Mr. Hamdi in di’s conduct generally was the fact that he was known refining the ministry’s statistical tool. This was wrong throughout the ministry as an employee with a lot of data but viewed in its entirety was a minor incident and could access and expertise who was willing to help colleagues have been resolved with little or no employment discipline. at various levels. He and a few others in similar positions provided answers to questions and solutions to problems Our assessment of Mr. Hamdi’s conduct was made more requiring data access. While his direct supervisor at the difficult by his refusal to participate in our investigation time of his dismissal explained that she had attempted as outlined in Chapter 2. We did not have his evidence to gain control over Mr. Hamdi’s work and data practices, under oath to consider. However, based on the informathe reality was that Mr. Hamdi’s actions had been not only tion available and having carefully assessed each of the condoned but expected of him for many years. As stated grounds the ministry relied on in terminating Mr. Hamdi, we have confidence concluding that some of the grounds by one of Mr. Hamdi’s previous Executive Directors, relied on were unsupported by the evidence and the inHe didn’t get any of his access fraudulently … vestigators did not consider or obtain evidence which was he was given access at some point … I’m sure if available to explain Mr. Hamdi’s conduct. Further, with some of that access had been taken away, there respect to the grounds that did have an evidentiary basis, would have been parts of the Ministry that would the ministry did not consider that much of Mr. Hamdi’s probably have screamed and complained. conduct in providing information within the ministry had We reviewed Mr. Hamdi’s suspension pending recommen- been condoned by his employer for many years. dation for dismissal letter with Dr. Davidson, to discuss her view of each ground for dismissal given this was the 185 186 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS It is therefore our conclusion that Mr. Hamdi’s employment dismissal was wrong. We base this conclusion on the following: Mr. Hamdi was suspended without pay for more than two weeks before having the opportunity to respond to the allegations against him The investigation and the interviews were conducted unfairly Mr. Hamdi’s data handling practices were consistent with the ministry’s practices at the time, and it was unfair to single him out based on his relationships with other employees in the Pharmaceutical Services Division The investigation team misunderstood or did not obtain key evidence in relation to the allegations, and the ministry relied on irrelevant grounds such as Mr. Hamdi’s friendships with other employees in terminating his employment Even if some discipline were warranted for Mr. Hamdi’s data handling practices, it would not be reasonable to sever the employment relationship on the basis of this conduct alone Mr. Hamdi should not have been dismissed from his employment. 9.3.4  David Scott 9.3.4.2  Analysis of Suspension and Dismissal Decisions Mr. Scott first came to the attention of investigators because of his work with Mr. Hamdi, Dr. W. Warburton and an external researcher on an atypical antipsychotic drugs project. He was suspended without pay August 1, 2012, the same day as Mr. Hamdi, by way of letter signed by Acting Assistant Deputy Minister, Nick Grant. 9.3.4.2.1  Investigative Process As they had done with Mr. Hamdi, investigators did not interview Mr. Scott until August 16, 2012. During the more than two weeks between his suspension and his first interview, he was not informed about the allegations against him or provided any information that would assist him to respond in the interviews. Investigators interviewed Mr. Scott three times prior to his dismissal on September 6, 2012: August 16, 24 and 30, 2012. The way in which the interviews were conducted did not provide Mr. Scott with a full and fair opportunity to respond to the allegations against him. Starting with the first interview, the interviewers set an accusatory and aggressive tone, which was apparent in our review of the transcripts and the audio recordings. Like the other interviewees, Mr. Scott was not provided with advance disclosure of documents or particulars of the case against him. Most of the first interview related to Mr. Scott’s work 9.3.4.1  History of Employment with the Ministry of on the atypical antipsychotics project with an external Health researcher. During this interview, investigators spent 10 In 2012, Mr. Scott was a senior researcher/advisor in the minutes asking Mr. Scott about an email that he neither Management Information Branch of the Planning and In- sent nor received, and thus, had never seen before. The novation Division. His general duties included producing email was from Mr. Hamdi to the external researcher. The a variety of summaries and analyses as requested on interviewers repeatedly asked Mr. Scott about Mr. Hamselected topics relating to division and ministry planning di’s intent in sending the email, which he explained that and decision making, and producing data and analyses he did not know. The interviewers openly disbelieved Mr. as requested on community, regional, provincial, national Scott’s responses when he was required to speculate. and international trends in population health, health services and health expenditures. Mr. Scott’s work products The interviewers spent the final 11 minutes of the first included data analyses, reports, literature reviews and interview pressing Mr. Scott about one more email, which he did not write. In the email, the external researcher other analytical documents. requested data in relation to the atypical antipsychotic Mr. Scott had been a valued Ministry of Health employee drugs research. When questioned, Mr. Scott attempted in for 12 years at the time of his dismissal in 2012. vain to explain that he did not give the external researcher any data. He told the investigators that the researcher CHAPTER 9 was seeking summary data that she had been previously provided. Mr. Scott explained to the investigators that he understood the project was internal and that he was permitted to communicate with the “external” researcher. When Mr. Scott informed the investigators several times in his interviews that he was directed and expected to work on we spoke to one of his supervisors, she remembered only the atypical antipsychotic drugs project with Dr. W. War- being asked general questions by the investigators and burton and the external researcher. He also informed the not specifics with respect to the communications with interviewers that the atypical antipsychotic drugs project the external researcher in question. The investigators was included in his Employee Performance and Develop- interviewed the two supervisors, but did not take notes, ment Plan (EPDP), which was the case in 2009 and 2010. or record a transcript so we were unable to confirm what they told the investigators at the time. The lead investigator told us that she did follow up at the time and could not find reference to the atypical anti- 9.3.4.2.2  Dismissal Decision psychotic drugs project on Mr. Scott’s EPDP. When we On September 6, 2012, the Ministry of Health provided reviewed it, we saw that the EPDP specifically referenced Mr. Scott with a suspension pending recommendation Mr. Scott’s work on the project. for dismissal letter, signed by Mr. Sidhu on behalf of Mr. It appears that the investigators did not accept the evi- Hamdi’s Assistant Deputy Minister, Dr. Davidson, and a dence Mr. Scott provided in his first interview, as in his dismissal letter signed by Deputy Minister Whitmarsh. second and third interviews, they repeated some of the The suspension pending recommendation for dismissal same lines of inquiry. They asked Mr. Scott repeatedly letter provided more details about the alleged misconduct, about his working with an “external researcher.” He ex- while the dismissal letter itself was brief but included plained that he viewed the atypical antipsychotic drugs nine grounds for dismissal. As discussed earlier in this project as an internal project, given Dr. W. Warburton’s chapter, Dr. Davidson was not aware, until we interviewed contract with the ministry and the direction he had re- her in the fall of 2016, of the letter drafted and signed in ceived to work on the project. Mr. Scott explained that her name. his direct supervisor had received a participants list in the One of the grounds listed in Mr. Scott’s September 6, 2012, project, which included Dr. W. Warburton and the external dismissal letter was facilitating provision of data to the researcher. When Mr. Scott provided new evidence that external researcher engaged in the atypical antipsychotic did not fit with their theory that he was providing data drugs research. For the reasons discussed with reference to an external researcher without authorization, no one to Mr. Hamdi’s dismissal and Mr. Scott’s interview evifollowed up with additional questions, or even acknow- dence described above, the inclusion of this as a ground ledged that they had heard it. for dismissal was wrong. In the final interview, the investigators returned to this issue, telling Mr. Scott that they had spoken with his supervisors who said that he was not to be doing any “external” work. This would appear to be correct and consistent with Mr. Scott’s evidence that he was not to be doing “external” work. The problem, however, is that the atypical antipsychotic drugs research that Mr. Scott participated in was not considered external by him or by the Primary Care Branch which directed the work. We describe in Chapter 12, that the project was a collaboration between the Primary Health Care Branch and the Provincial Health Services Authority, where the “external researcher” worked. The project was funded by the PHSA. The ministry also asserted that Mr. Scott facilitated the provision of personally identifiable data via a flash drive to Roderick MacIsaac for his PhD. Our analysis with respect to these events as they relate to Mr. Scott is the same as our analysis for Mr. Hamdi. In our assessment, Mr. Scott conducted himself appropriately, and therefore, these events did not constitute misconduct, let alone grounds for dismissal. The ministry further asserted that Mr. Scott solicited a university professor with a general proposal for a research project without discussing it or requesting approval from his supervisor. Mr. Scott had been intending to enrol in a university program outside of work hours, as he had 187 188 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS done in the past. He explained in his 2012 interviews that division, Mr. Scott was permitted to have most if not all of if he wanted to have the course paid for by his employer, this information to carry out his job duties. It was known he would have to submit a request, which he had not that Mr. Scott was one of the few people at the ministry yet done. There is nothing in the standards of conduct who had extensive experience with CCHS data and that prohibiting an employee from taking educational courses he had previously been the informal data custodian who outside of work hours, paid for by the employee. If he had received the CCHS disks from Statistics Canada. wanted to take courses during his work hours, he would The ministry was rightfully concerned about Mr. Scott’s have required permission. The course had not yet begun. data security practices. The CDs contained highly personal This did not constitute misconduct, let alone grounds for and sensitive data on portable media with the passwords dismissal. taped to or included in the disk case. This was far from Moreover, in their interviews with Mr. Scott, investigators best practice and was not consistent with government tried to establish that he had been intending to use per- policies with respect to information security. The CDs, sonally identifiable data for the upcoming course based however, were held in a locked drawer of his desk. The on his email communications with the same professor. investigation team criticized Mr. Scott in his interview, Mr. Scott made several attempts to disabuse them of because they got the drawer key from maintenance staff this concern. He explained that the work product of the easily. Mr. Scott said that he did not realize that the staff course would be a research proposal, a theoretical and also had keys to the drawer. Further, almost everyone we methodological portion of a potential project, not actual asked about information security said that Mr. Scott’s research involving data analysis. Mr. Scott’s explanation practices were not uncommon within the ministry. They in his interviews was consistent with his emails on the explained that in 2012, best practices for data security topic. Further, when the professor asked him about the were not sufficiently disseminated to staff or enforced, potential to access ministry data for the purposes of a and many were addressed by the Deloitte report in the research project, Mr. Scott appropriately referred him to year after Mr. Scott’s dismissal. the PopData BC data access process. Of all of the grounds for dismissal listed in Mr. Scott’s The dismissal letter also stated that Mr. Scott stored and letter, only the matter with respect to the CDs might have accessed approximately 50 CDs of personally identifiable been considered inappropriate conduct at the time. Howdata at his desk. The letter alleged that Mr. Scott was not ever, this does not mean that his dismissal was justified. authorized to have most of that information and that he Given the culture and practices regarding data at the was not forthright about its contents. Mr. Scott told inves- ministry at the time, Mr. Scott’s actions were implicitly tigators that the material comprised copies of old CCHS condoned.16 His supervisors expressed in their interviews data that he was entitled to have, as well as some pro- with us that they would not have considered dismissal as jects that he had worked on. Investigators conducted an an appropriate response and might not have considered analysis of the CDs. They had not, at that time, determined any disciplinary action had they been directly consulted or whether Mr. Scott was entitled to have the CDs. They did involved in the decision to terminate his employment. They determine that some of the CDs contained CCHS data indicated that it would have been an opportunity to eduonly and others contained CCHS data linked to Ministry cate Mr. Scott on best practices in information security. of Health data in fully identifiable form. The letter stated Having carefully assessed each of the grounds the ministry that Mr. Scott’s possession of this data represented an relied on in terminating Mr. Scott, we have concluded “egregious potential privacy breach.” that most of the grounds relied on were unsupported by Based on our assessment of the transcripts of Mr. Scott’s the evidence and not true. Further, with respect to the 2012 interviews, the documentary evidence and our inter- ground that did have an evidentiary basis, it would have views with his former supervisors and executives in his been unreasonable to conclude that Mr. Scott’s conduct 16 These systemic information practices within the Ministry of Health were the subject of criticism by the Information and Privacy Commissioner in that office’s review of these matters discussed in Chapter 10. CHAPTER 9 was sufficiently serious to undermine the employment relationship. It is our conclusion that Mr. Scott’s employment dismissal was wrong. We base this conclusion on the following: Mr. Scott was suspended without pay for more than two weeks before having the opportunity to respond to the allegations against him The investigation and interviews were conducted unfairly Mr. Scott’s data handling practices, while not consistent with best practice, were consistent with the ministry’s practices at the time and it was unfair to single him out Even if discipline were warranted for Mr. Scott’s data handling practices, it would not be reasonable to sever the employment relationship on the basis of this conduct alone Mr. Scott should not have been dismissed from his employment. 9.3.5  Roderick MacIsaac By summer 2012, Mr. MacIsaac was beginning to develop his thesis proposal but had not yet finalized it. He had not begun doing any formal research as part of his thesis. Mr. MacIsaac planned to conduct his thesis on the health outcomes from the MEIA 2007 program. Mr. MacIsaac’s proposal stated that he would assess the impacts of MEIA’s 2007 program on income assistance participants. The intention was to use complex statistical analysis methods to compare the program participants with non-participating income assistance recipients who also smoked. The study would require two types of anonymized data: BC Ministry of Health data and CCHS data. Participation in the 2007 program was recorded in the PharmaNet system, a ministry database that contains prescription drug records. This database was linkable to other ministry databases to track hospital admissions, physicians’ visits and deaths. These records could also be linked to CCHS data, which would have provided information about who smoked, who successfully quit smoking and who continued to smoke after participating in the income assistance smoking cessation program. It was the evaluation of the health outcomes of the 2007 MEIA program that Mr. MacIsaac had hoped would become the topic for his planned thesis. 9.3.5.1  History of Employment with the Ministry of Health Mr. MacIsaac was first hired as a co-op student by the When Dr. R. Warburton was suspended from her job on Ministry of Health in October 2011. His appointment was July 17, 2012, Mr. MacIsaac was worried about the impact renewed for two subsequent terms. Dr. R. Warburton, on both his work product and his academic research. He Co-Director of Research and Evidence Development, be- had just received access to linked ministry datasets in came his supervisor in November 2011. After he trans- late June so that he could write the code that could be ferred to her supervision, he began working on projects used for evaluating both smoking cessation programs. At related to the methodology the Ministry of Health could that time, he did not yet have the anonymized data for his use to evaluate its 2011 smoking cessation program. PhD and he had not yet analyzed the data for the ministry. One project was to develop the statistical method or After Dr. R. Warburton’s suspension, Mr. MacIsaac re“code” to evaluate the 2011 program. Creating this sta- quested a meeting with his Executive Director, Mitch tistical method required data to test the code. Mr. Ma- Moneo. According to Mr. Moneo: cIsaac intended to use the data from a project on an earlier Roderick came to me and was wondering what smoking cessation program operated by the Ministry of his – what his future was, and he was concerned Employment and Income Assistance (MEIA) to assist in because he hadn’t completed the work that he developing the code. was doing and that, you know, he didn’t have the 9.3.5.2  Doctoral Studies direction from Rebecca anymore and would he be able to do this. And he was asking, you know, Mr. MacIsaac was also a PhD candidate in the public adif there’s a possibility for further extension on his ministration program at the University of Victoria, and Dr. contract and all that. R. Warburton was his potential dissertation supervisor. 189 190 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS … … but then he said to me, “Well, not only that, though, I’ve got a lot riding on this because I’ve got – my whole academic future is tied up in this,” and – I was – you know, kind of troubled just by the whole situation, I guess. same questions multiple times, and despite his consistent answers, they disbelieved him. Mr. MacIsaac responded at least nine times that he did not use any data for his PhD and at least five times that he did not have a particular flash drive in his possession. Mr. MacIsaac was ultimately dismissed for these reasons. Mr. MacIsaac was not able to finish his work for the We discuss Mr. MacIsaac’s interviews below in greatministry or complete any data access arrangements re- er detail as they relate to the specific grounds for his quired for his academic work before his employment was dismissal. suspended. 9.3.5.3.2  Dismissal Decision The ministry ended Mr. MacIsaac’s employment on the 9.3.5.3  Analysis of Suspension and Dismissal basis that he had inappropriately accessed data for the Decisions Mr. MacIsaac was interviewed once on August 28, 2012. purposes of his PhD while knowing that no such authorHe was suspended without pay pending investigation at ization had been provided. This is the same incident identhe conclusion of his interview. The suspension letter was tified above with reference to Mr. Hamdi’s dismissal. It is from his Assistant Deputy Minister, Ms. Walman, but it also the third incident described in the Information and was signed by one of the interviewers, the Strategic HR Privacy Commissioner’s June 2013 report and is described Manager. As we have described above, Ms. Walman was in Chapter 10. not consulted prior to Mr. MacIsaac’s suspension as she was on vacation at that time. As previously described, Mr. Hamdi provided a flash drive to Mr. MacIsaac containing linked health datasets with federal CCHS data. The investigators believed that Mr. The PSA investigator told us that she told Mr. Whitmarsh that there was no point in firing Mr. MacIsaac because his MacIsaac had used that same data for his PhD research. co-op term with the ministry finished on August 31, 2012 However, the investigators failed to consider the oral and but that she did not press this point once Mr. Whitmarsh documentary evidence before them. Mr. MacIsaac was had made the decision to dismiss him. Mr. Whitmarsh told authorized to have and use the data for his ministry work us the PSA investigator recommended Mr. MacIsaac’s and he did not use, nor did he appear to have the intendismissal, and that the dismissal letter the PSA repre- tion to use, the data for any external purposes. Although sentatives drafted constituted the PSA’s recommendation. investigators received some contradictory evidence from other people about what they thought the data was for, On September 6, 2012, Mr. Whitmarsh dismissed Mr. Mr. MacIsaac was consistent in his evidence that he had MacIsaac for having “irreparably breached the trust of not begun doing any formal research as part of his thesis. [his] employer, [his] colleagues and the general public,” thereby rendering him “unfit for employment in the Public In his interview, Mr. MacIsaac stated at least nine times Service.” The dismissal served no immediate purpose as in no uncertain terms that he had not used any data for the term of Mr. MacIsaac’s contract had ended on August his PhD. He explained that his PhD was still in the propos31, 2012, three days after his suspension and six days al stage and that any data he had received was for the smoking cessation evaluation work he was contributing to before his firing. as part of his co-op position with the Ministry of Health. 9.3.5.3.1  Investigative Process Significantly, he explained that, for his thesis, he intended Mr. MacIsaac’s interview shared a number of deficiencies to use an anonymized data set that had not yet been rethat occurred in the interviews the other employees under- quested or created. This is outlined in his draft proposal, went. Mr. MacIsaac was interviewed by four members which stated under the subject heading “Data Sources”: of the investigation team. The interviewers’ tones were All data will be anonymized at the source, as sometimes condescending. They asked Mr. MacIsaac the authorized by the BC Ministry of Health’s Data CHAPTER 9 Access, Research and Stewardship Branch. All personal identifiers including Personal Health Numbers (PHNs) will be removed or scrambled prior to accessing the data for purposes of this research. No raw data will be collected from BC Ministry of Employment and Income Assistance; only BC Ministry of Health and CCHS data will be used. Mr. MacIsaac’s assertion that he intended to use an anonymized data set for his academic work was also supported by the analysis an investigator conducted after Mr. MacIsaac’s firing. That investigator concluded: The information that was prepared for – that we reconstructed included a study – what’s called a study ID crosswalk key in the data set. So they were actually – so it appeared from the data being prepared that they were intending to have the final product keyed with a study ID not with the personal health number. So that is actually consistent with his statement that it was – that they were going to be using anonymized data. As Mr. MacIsaac wrote to his union representative after his suspension but before his dismissal: My data analysis has not been completed because of the recent series of suspensions. As Rebecca was removed from the Ministry, her key role in developing the Ministry’s evaluation plan was halted. After Ramsay Hamdi’s suspension, I was unable to complete the construction of the datasets for analysis. Mr. MacIsaac further wrote after his dismissal: Rebecca Warburton thought it best to get the Waiver done first, even before I started working on the Smoking Cessation Evaluation. Had I been able to complete my work for the Smoking Cessation Evaluation, I would then have generated an anonymized dataset for the purposes of the PhD dissertation. This anonymized dataset had not been created by August 2012. email to Dr. R. Warburton in November 2011 with respect to his PhD proposal and ethics waiver, he said: The Waiver is on your desk with the data sources appended, and so will the proposal as soon as I finish fixing the references. I’ve encountered a problem with the Waiver. The final line in the fourth paragraph on the second page states: “Attach a sample of the data”. They want to see something that shows how I am linking different datasets. All databases already linked require a sample for the waiver to be approved. I don’t know what to do. Anonymized or not, any health data taken outside the Ministry would be a information breach would it not? There is some dispute in the evidence about whether Mr. MacIsaac and Dr. R. Warburton believed that he also had authorization to use ministry data for his PhD. Mr. MacIsaac was not personally aware of any specific authorizations, but he believed Dr. R. Warburton to be in possession of them if they existed. In any event, because Mr. MacIsaac was authorized to possess that data for his ministry work and had not yet used any data for his academic work, the ministry had an opportunity and an obligation to inform Mr. MacIsaac that he would require a separate authorization process before using any data for his PhD. This was a lost opportunity to engage with and educate a co-op student on ministry processes. Instead, the ministry found misconduct. The second ground for Mr. MacIsaac’s dismissal related to the data set being converted from SAS to STATA format on Dr. W. Warburton’s computer by Mr. Hamdi before Mr. Hamdi provided it to Mr. MacIsaac (discussed in section 9.3.3.2.2, above). Our analysis is the same here as it was with respect to Mr. Hamdi. The ministry and the investigators could not have expected Mr. MacIsaac to know the details of Dr. W. Warburton’s data suspension, given that Dr. W. Warburton himself did not understand the limits of his suspension. The ministry’s third reason for terminating Mr. MacIsaac was his refusal to sign a declaration stating that he had Other evidence suggests that Mr. MacIsaac was quite “no knowledge of any data stored outside of the Ministry.” conscientious with respect to protecting the personal in- This allegation arose from his interview. During the interformation contained in administrative health data. In an view, the lead investigator asked Mr. MacIsaac six times to sign a declaration that stated that he did not have any 191 192 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS ministry data in his possession. The interviewers emphasized that Mr. MacIsaac could face civil or criminal action if he signed the declaration. The investigators described the range of data covered by this declaration broadly; it was not just limited to personal information. The investigators said, “if you have … any documents outside of the work place that has any government information on it, any data … anything needs to be returned to the ministry.” Mr. MacIsaac was – understandably – reluctant to sign the declaration without the opportunity to ensure that he did not have anything in his possession that would fall within this broad definition. He told the interviewers he needed some time to “make sure that everything that I have is not related.” Mr. MacIsaac also expressed concern about the form and legitimacy of the declaration that he was asked to sign. The form was not on official Ministry of Health or Office of the Chief Information Officer letterhead. As described by Mr. MacIsaac to his union representative: I was immediately suspicious of the page, for it [is] unclear that it is a government document. The usual ministry letterhead (either from Citizen Services or Health) is conspicuously absent. Further, declarations are preceded by legal text. This is a blank declaration page requiring me to sign a legal document that I had not been allowed to view. I want a lawyer to look at this document and verify whether [the lead investigator] obtained this declaration page from an official Citizen Services document, and verify whether she was overstepping her authority in this case. it before the interview. It was unfair and inappropriate to include this as a ground for dismissal. Mr. MacIsaac’s dismissal letter also asserted that he routinely attempted to manipulate the investigation process by providing misleading and incomplete information. Mr. MacIsaac’s response to that allegation, which he provided to his union representative, was as follows: The above sentence is not an objective statement with any substantive allegations. I provided information to the best of my knowledge.17 We reviewed Mr. MacIsaac’s transcripts and audio recording of his interview and there was no indication that he provided misleading information. All of Mr. MacIsaac’s evidence was consistent with the documentary evidence that we gathered and that the investigation team had available to them at the time, including his draft PhD proposal and email communications. One investigator who was at the interview with Mr. MacIsaac told us that Mr. MacIsaac appeared agitated during the interview. At the time, the interviewers interpreted this as a sign of deceit but it could also just as reasonably be conceived as a sign of anxiety and concern. It was not fair for the investigators to draw that inference. It was inappropriate to include as a ground for dismissal the allegation that he “routinely attempted to manipulate the investigative process.” Lastly, the ministry dismissed Mr. MacIsaac for jeopardizing the privacy of British Columbians and the reputation of the ministry. Given that Mr. MacIsaac was authorized to receive and use the datasets that he received for his Mr. MacIsaac offered to return the signed form to the ministry work, and that there was no evidence that he investigators the following day, but they continued to used it for any other purpose, it cannot be said that Mr. pressure him to sign it at the meeting, saying that he MacIsaac’s actions jeopardized “the privacy of British could just “list… anything that you have” and sign the Columbians.” This statement was unsupported by the declaration. The investigation team interpreted his reluc- evidence. tance to sign the form at the meeting as further evidence Having carefully assessed each of the grounds the ministry that Mr. MacIsaac was complicit in wrongdoing rather relied on in terminating Mr. MacIsaac, we have concluded than an effort to be truthful and conscientious. It was that most of the grounds relied on were unsupported by completely appropriate for Mr. MacIsaac to request time the evidence and not true, and that the ground relating to ensure that his declaration was accurate before signing, to declining to sign the declaration did not constitute particularly as he had not had any opportunity to review misconduct. 17 Letter from Roderick MacIsaac to Cheryl Jones, staff representative BCGEU, 13 September 2012. CHAPTER 9 It is our conclusion that Mr. MacIsaac’s employment dismissal was wrong. We base this conclusion on the following: The interviews were conducted unfairly The dismissals were based on incorrect or incomplete evidence about Mr. MacIsaac’s PhD research and his access to and use of ministry administrative health data It was inappropriate and unfair to infer from Mr. MacIsaac’s conduct in the interview or his refusal to sign the data declaration that he was attempting to mislead the investigation team 9.3.6  Robert Hart 9.3.6.1  History of Employment with the Ministry At the time of his firing, Robert Hart was the Director of Data Access, Research and Stewardship in the Information Management and Knowledge Services Branch (IMKS) of the Health Services IM/IT Division of Ministry of Health. He had been in that role since 2008 and had been with the public service since 1985. Mr. Hart had a lot of background knowledge about the ministry and its programs, which informed his work. Mr. Hart was a loyal and hard-working employee. Mr. Hart reported directly to the Executive Director of Mr. MacIsaac should not have been dismissed from his IMKS and the Chief Data Steward. As the Director of Data Access, Research and Stewardship, Mr. Hart had a employment. large portfolio. He was the senior manager responsible After his dismissal, an investigator reviewed Mr. Mafor a number of data-related work groups including those cIsaac’s communications with respect to data access. responsible for drafting the ministry’s information sharing On November 27, 2012, he determined that it was highly agreements, reviewing and approving data access for minunlikely that Mr. MacIsaac had taken any data away from istry contractors and employees and, for a time, reviewing the ministry: and approving data access applications from researchers Roderick worked a fair bit at home, but it appears through PopData BC. that there was an understanding that he had to Mr. Hart’s employees included the employees who were work at the office when working with sensitive “data stewards” and who held conservative and riskdata. Nevertheless, he wouldn’t be working in a averse views of privacy and data access, as described in vacuum, and there would have been government Chapter 4. The complainant worked in his branch and thus documents that he either developed at home or he had to deal with the challenges that the complainant that he took home to work with. and some of her colleagues brought to the work place, While he was provided copies of CCH survey and including their various theories, their distrust and, at times, administrative data on his PC at the office which their refusal to work on certain projects. As described by provided an opportunity to copy the data and a previous Chief Data Steward, it was a highly stressful bring it home, I have never found anything that place to work due to both internal and external pressures. suggests that he ever brought home any sensitive Mr. Hart’s area was understaffed for a long time and he data, either PI or anonymized, or sent any of this was faced with managing a massive backlog of data acdata to UVIC accounts. Rather I found that he was cess applications and information sharing agreements, adverse to the idea of handling this information adding to the stressful work environment. at home and also that Rebecca instructed him 9.3.6.2  Analysis of Suspension and Dismissal to only work with “CCHS” and “admin data” at Decisions the office. Investigators interviewed Mr. Hart once on August 31, As far as we can determine, the ministry did not con2012, and suspended him without pay at the conclusion of tact Mr. MacIsaac to inform him of this reappraisal of that interview. Mr. Hart was an excluded employee with his conduct. no provision in his contract to allow the government to suspend him without pay. Although this likely amounted to a constructive dismissal of Mr. Hart from his employment, 193 194 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS had he taken that position, the Ministry of Health terminated his employment in a letter dated September 13, 2012. Mr. Hart explained to the team that he wanted to conduct a review of the data access that individuals in the ministry had, starting with Mr. Hamdi, but advised that he had inThe suspension letter Mr. Hart received was from his Assistant Deputy Minister, Lindsay Kislock, but it was sufficient resources to carry out that review. The ministry signed by one of the interviewers, the Strategic HR Man- cited Mr. Hamdi’s “blanket access” to data as a reason ager. The Strategic HR Manager told Mr. Hart that the rea- to terminate Mr. Hart; it appears not to have considered son for the suspension was “the fact that as the Director Mr. Hart’s evidence on this point. for Data Access in the Ministry that your response to the The interviewers failed to be objective. Investigators email regarding the selling of data was inaction and less planned to ask Mr. Hart during the interview about a than appropriate.” specific email exchange, which directly led to his susMs. Kislock did not make the decision to suspend Mr. Hart. pension, yet it was apparent to us there was nothing that She was on vacation out of the country at the time of his Mr. Hart could have said that would have changed that suspension, and only learned about it after it happened. decision. Further, given that the investigators had already made up their minds about the nature of the email exThe documentary evidence indicates that, while she was change and Mr. Hart’s culpability, they should have notinot involved in the decision, she did discuss the matter fied him at the outset that he was under investigation and with the lead investigator via email. Following Mr. Hart’s that a disciplinary decision might be taken. interview, the lead investigator sent an email to Ms. Kislock notifying her that Mr. Hart was suspended that 9.3.6.2.2  Dismissal Decision day without pay. Ms. Kislock replied: “Be careful not to Mr. Hart’s employment dismissal was based on three almix our desires with the facts.” The lead investigator re- legations. These allegations were either factually inaccursponded, “Believe me we have facts.” From our review ate or an unreasonable interpretation of Mr. Hart’s role. of other emails and our interview with Ms. Kislock, it The first allegation was that, having been copied on the was evident that she did not think highly of Mr. Hart. She June 2008 email chain in which a contractor sent an email viewed him as partially responsible for the data backlog to Mr. Hamdi indicating that the contractor had approvand other challenges of the data area. Ms. Kislock gave al to spend $2,000 for assistance with data access, Mr. evidence that the lead investigator knew that Ms. Kislock Hart “wilfully turned a blind eye” and “did not take any “wasn’t glowing” in her praise of Mr. Hart and she was action.” The PSA investigator in the interview mischarcautioning the lead investigator that she should not allow acterized the email without any evidence to support her bias to cloud her judgment. characterization. She said: “This is talking about selling 9.3.6.2.1  Investigative Process Investigators brought Mr. Hart in for an interview on the basis that he would be asked questions to “learn a little bit more about what information you might have as part of this review that is going on.” He was not informed that disciplinary action might result from the interview. He was not informed of any specific concerns about his conduct before or during the interview. Ramsay’s access directly to [the contractor] and involving [another employee].” As we discuss earlier in relation to Mr. Hamdi’s dismissal, the investigation team failed to properly investigate this e-mail and its various possible interpretations. Before presenting the email to Mr. Hart, the interviewers asked him if he was aware of whether he could recall anyone being offered money to provide ministry data. Mr. Hart Three-quarters of the way through the interview Mr. Hart responded that he recalled that the contractor had offered was taken aback with a line of questioning about providing Mr. Hamdi a contract to work with him at some point. He ministry data for money. As in other interviews, the in- then went on to explain that it would not be a problem vestigators seemed uninterested in what the interviewee if Mr. Hamdi “followed the process and went and talked had to say, creating the impression that they had already to his boss and says, ‘I have been offered this contract.’” reached a conclusion before the interview. For example, He explained that he did not tell anyone about it because, CHAPTER 9 I told Ramsay “if you are going to do it, you have got to go through the process.” Or I probably told him that. I didn’t report him to anybody. … I don’t think he took Bill up on it; to be honest, but I don’t know. Even if the investigation team did not accept Mr. Hart’s evidence, the records made it clear that Mr. Hart did not ignore this series of emails. To the contrary, it is clear from the email that he believed that a “formal request” would be “initiated.” He believed everyone would be following the appropriate rules, and nothing had yet occurred. To the extent that this allegation formed the basis for his dismissal, the dismissal was wrong. In fact, there was a series of follow-up emails and meetings later in June and July 2008 in which Mr. Hart confirmed that some kind of agreement would need to be in place in order to provide data to the contractor. Because the request was not imminent, the form of that agreement was not worked out at the time. information management practices that existed within the ministry at the time. The third ground for terminating Mr. Hart was that he failed to raise concerns from other staff members (primarily the complainant) about “improper contracting and data practices” in the ministry. This is not correct. In fact, Mr. Hart raised this issue with his direct supervisor, and together, they raised these concerns with Mr. Sidhu. As we have heard from others in the ministry, the data stewards with whom Mr. Hart worked were challenging to manage given their strongly held views with respect to access and use of health data, and the impact this had on their productivity.18 Further, some of the concerns raised by the complainant and other employees in Mr. Hart’s branch were raised directly with the previous Assistant Deputy Minister Elaine McKnight. As a result of a lot of complaining and concerns raised by the data stewards, Ms. McKnight was directly involved in discussions about the direction of data access for the Drug Safety and Effectiveness Network (DSEN) with Mr. Nakagawa and another former Associate Deputy The second ground for dismissal related to Mr. Hart’s al- Minister. When investigators asked Mr. Hart about this, he leged failure to limit the data to which Mr. Hamdi had explained that he did not see a need to raise the concerns access. to the Deputy Minister given that three ministry executive We interviewed a number of individuals about Mr. Ham- members were already involved. Given that Mr. Hart did di’s access to data. These interviews confirmed that the actually raise concerns from his staff to his superiors, it extent of Mr. Hamdi’s access to data was common know- was wrong for the ministry to assert this as a ground for ledge and widely accepted in the ministry in 2012. As we dismissal. have described above, many people at the ministry relied Having carefully assessed each of the grounds the ministry on Mr. Hamdi’s data access and his cross-database skills relied on in terminating Mr. Hart, we have concluded that to do their work. We also heard evidence that, generally, the grounds relied on were unsupported by the evidence. employees did not lose data access over time. There was It was wrong to conclude that his actions constituted no audit process by which employee data access was misconduct, let alone misconduct sufficiently serious to reviewed. We learned that additional data access would undermine the employment relationship. In light of all of usually be added over time, but not removed, unless the the evidence, we have determined that terminating Mr. employee was starting a new position, at which point it Hart for cause was improper. may be reviewed and adjusted. While it may not have been a best practice, it was widespread in the ministry, Mr. Hart was a longstanding, valued public servant. As and thus it was wrong and unfair to single out Mr. Hart they did with all of the individuals dismissed as a result of for what could at best be characterized as a systemic the ministry’s 2012 investigation, neither the PSA nor the issue. We describe in Chapter 10 the Information and ministry considered Mr. Hart’s positive personnel record. Privacy Commissioner’s criticisms of the poor systemic Mr. Hart should not have been dismissed from his employment. 18 As described in Chapter 4. 195 196 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS 9.4  The Public Announcement 9.4.1  Involvement of Government Communications and Public Engagement before the First Suspensions suspended without pay, pending further investigation by the PSA. One contractor will be advised that his contract is being cancelled. … … the ministry has or may suspend data access for all people involved in the PSD contracts under review, in government and at UVic and UBC. The Ministry of Health investigation first came to the attention of Government Communications and Public Engagement (GCPE) in mid-July 2012. Responsibility for The “advice and recommended response” in the informacommunications was assigned to the manager responsible tion note included the following bullet points: for issues management in the Ministry of Health and his ƒƒ We cannot comment on personnel matters. staff. Related communications materials were drafted by ƒƒThe Public Service Agency has established the manager or his staff, and then reviewed by the Director processes and procedures in place to handle of communications for the Ministry of Health. The GCPE all human resources complaints and constaff received information for the communications matericerns. als from Mr. Whitmarsh, Ms. Kislock and Ms. Walman, as well as the investigation team. ƒƒ Employees who fail to comply with the Public Service standards of conduct may be subject GCPE staff drafted an internal information note on July 16, to disciplinary action, including dismissal. 2012 that contained some key “holding messages” for use if the investigation became public knowledge. At the request of Ministry of Health executives, GCPE drafted this note to coincide with the employee suspension decisions and Dr. W. Warburton’s contract dismissal. On July 16, 2012, Ms. Walman directed the Communications Director to “pls ensure we are ready.” After noting the complaint made to the office of the Auditor General, the July 16, 2012 information note set out the background of the issue: … the allegations … included inappropriate data access, intellectual property infringement and possible violations of the public service code of conduct. The ministry’s financial and corporate service division interviewed staff and looked at the contracts involved in the complaint. Following this, a formal internal review was launched in May by the Ministry of Labour, Citizens’ Services and Open Government as lead, supported by the ministry. ƒƒThe Ministry of Health fully cooperates with the Public Service Agency on all human resource and disciplinary matters. 9.4.2  Preparations for a Public Announcement By mid-August 2012, government began preparing for a public announcement on the investigation at some point in early September. Based on what they heard from investigators, GCPE staff understood that this was a serious matter and necessitated a strong communications response. As described above, by mid-August, Mr. Whitmarsh had become increasingly concerned about the potential for news of the investigation being leaked publicly. In an August 14, 2012 email to communications staff, Mr. Whitmarsh said: Can we work up the holding messaging in the event of a leak? … No matter when a leak happens, if it does, the messaging is the same. … A few facts, people suspended, when etc The internal review draft report is complete; the reviewers are now completing final recommendations. The Public Service Agency has the initial findings and is doing a formal investigation. On Monday, July 16, three staff members will be Investigation ongoing, cannot comment further We take these issue [sic] very seriously, have acting [sic] quickly and will peruse [sic] to resolution. CHAPTER 9 We do not know the outcome at this point and may not for some considerable time Deputy Ministers and the lead investigator for review and comment, as they hoped to provide a final version to Mr. Whitmarsh that day. The Communications Director responded to Mr. Whitmarsh that GCPE had asked Ms. Kislock, Mr. Sidhu and This was the first update that mentioned that the RCMP the lead investigator to review the July 16 information had been contacted. Ms. Kislock questioned whether this note and would update it to better reflect Mr. Whitmarsh’s had indeed happened, to which the lead investigator resuggestions. sponded: “the RCMP were contacted by phone by myself Between August 15 and September 6, 2012, GCPE staff and OCG last week and today [the Director and an employin the Ministry of Health updated the information note as ee] from OCG and myself met with the RCMP for several necessary and worked with Mr. Whitmarsh, the investi- hours to review the file.” gation team, and legal counsel in Legal Services Branch to develop the communications material for a public announcement. In an email Ms. Walman suggested a cautionary note be included: “Can we stress all are allegations until proven differently?” 9.4.3  Decision to Make a Public Announcement On August 29, 2012, then-Minister of Finance and Deputy Premier Kevin Falcon announced that he would be stepping down from his Cabinet post effective immediately.19 This meant that Premier Clark would have to shuffle her cabinet to fill the key roles held by then-Minister Falcon. None of the individuals we interviewed and none of the documents we reviewed clearly answered the question of who initially suggested that government should make a public announcement about the investigation. Mr. Whit- By August 29, 2012, the Ministry of Health Communications Manager had developed a draft news release. It marsh told us: opened with the following statement: I thought once you start, if we do terminate a VICTORIA – The Ministry of Health has contacted group of people then – and I was alert to sort the RCMP in connection with allegations of inof the … vocal voice that groups like the T[heraappropriate conduct and practices within the peutics] I[nitiative] had.… you know I don’t have research and evidence development section of to be a rocket scientist to realize this is all going its pharmaceutical services division. to the public at some point … He stated that, typically, Deputy Ministers do not appear On August 29, 2012, Mr. Whitmarsh called Ms. Mentbefore the media. He said, “part of our role is to highlight zelopoulos. He remembered that he thought he was these issues for the political side of government so that supposed to keep her “in the loop from the communicathey’re aware that they’re coming and … they have input tions side.” Mr. Whitmarsh remembered giving Ms. Menat the various levels on how they want to handle it.” GCPE tzelopoulos a general update about the situation and “that staff in the Ministry of Health told us the decision to she felt that the government should get on top of this by hold a press conference was made on the basis of direc- putting out some kind of announcement.” tion from senior executives in the Ministry of Health and GCPE. GCPE staff were consulting with Mr. Whitmarsh on the key messages and communications approach and then-Deputy Minister of GCPE Ms. Mentzelopoulos on strategy. On August 27, 2012, GCPE staff updated the information note and circulated it to Ministry of Health Assistant Ms. Mentzelopoulos had a different recollection of the conversation. She understood that people were going to be dismissed, and recalled telling Mr. Whitmarsh that he needed to be able to explain why people were going to be losing their jobs. She said that Mr. Whitmarsh was emphatic that she stay out of it. 19 “B.C. finance minister steps down from cabinet,” CBC News, 29 August 2012 . 197 198 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS 9.4.4  Plan to Brief Minister de Jong By August 29, 2012 a press conference had been set for September 5, 2012, with the above news release to be issued the same day. GCPE planned that Minister de Jong would conduct the press conference. The impending Cabinet shuffle resulted in a change to the planning for the press conference and the date of the announcement. According to a draft letter dated September 4, 2012 from Mr. Whitmarsh to Minister de Jong, and an accompanying meeting request titled “Minister de Jong Briefing – Announcement,” Mr. Whitmarsh intended to brief Minister de Jong that day about the progress of the investigation and about the planned press conference. However, Minister de Jong had no recollection of being updated on the issue after returning from his vacation that day. While the draft letter dated September 4 stated, “as discussed with you earlier today,” it is apparent that the letter was drafted in anticipation of a discussion that never happened given the upcoming Cabinet shuffle. complete by September 15, 2012, “to ensure all evidence is prepared for transfer to the RCMP by September 19, 2012.” The letter concluded, “I want to assure you that this is receiving my full and direct attention.” 9.4.5  September 4, 2012 On September 4, 2012 the Communications Manager received a call from Jonathan Fowlie, then a legislative reporter for the Vancouver Sun. Mr. Fowlie told the manager that he was going to write about the Ministry of Health investigation, and that he had detailed information about it – someone had decided to leak news of the investigation to him. The Communications Manager told him he would call him back, and immediately walked over to Mr. Whitmarsh’s office to tell him about the call. They agreed to tell Mr. Fowlie that government was planning to announce details in “the next little while.” The Communications Manager would “confirm details” on the basis that Mr. Fowlie not file his story until the morning of the announcement. By this time, because of the impending This draft letter, which was not finalized due to the Cab- Cabinet shuffle, the press conference had changed from inet shuffle, was intended to update the minister on the September 5 to September 6. status of the investigation and describe findings of the When we spoke with him, Mr. Whitmarsh confirmed that investigation to date, including: he knew Mr. Fowlie through their common interest in Inappropriate data access, use and disclosure MoH employees having been offered money by an external contractor in exchange for data Unauthorized work by employees with external stakeholders Breaches of the Standards of Conduct Inappropriate hiring practices “A $1 service contract established for the spouse of a PSD employee by another MoH division to facilitate direct contractor data access for a project funded by a health authority.” The letter went on to describe the resulting suspension of data access; suspension of signing authority for everybody in PSD, except the Assistant Deputy Minister; and the meeting with the RCMP. It said, “to date, seven staff members have been suspended without pay and, by the end of the week of September 3, I expect that five of those individuals will be terminated for cause.” The letter also stated that the first phase of the investigation would be cycling. Mr. Whitmarsh told us that he did not discuss the details of his job in a social context. This call from Mr. Fowlie on September 4 did not hasten the government’s plans for a public announcement in any significant way; moreover, it did not result in any significant change to the content of the news release. The ministry planned to coordinate some of the employee dismissals to occur on the day of the press conference. GCPE prepared a news release and communications materials for both the Minister and Deputy Minister. Mr. Whitmarsh planned to provide a technical briefing to media in advance of the Minister’s statement. As the materials were being vetted, Mr. Whitmarsh wrote at 4:12 p.m. on September 4, 2012: On quick read, we need to get the employee facts right. Its [sic] 7 suspensions and by Friday a number of dismissals (5?) Another action is to get independence [sic] advi[c]e on information sharing privacy and data management/governance. CHAPTER 9 Within five minutes, an investigator confirmed the plan to fire five people on the day of the press conference. The Communications Manager confirmed the need to update the communications materials “with the dismissals just before we go out to make sure we have the most up to date information.” He also confirmed that the reporter “has info that six employees have been suspended.” 9.4.6  September 5, 2012 seen the conscientiousness with which public servants performed their duties. Given this experience, she was surprised that a group of public servants would – as was described to her – be “bending the rules and going around the rules.” She believed that the matter was reported to the RCMP because two unencrypted flash drives that were believed to have data on them could not be found – and thus were presumed stolen. Minister MacDiarmid recalled that, from her perspective, On September 5, 2012, Dr. Margaret MacDiarmid became “one of the things that I was really gobsmacked by was that Minister of Health, replacing outgoing Minister Mike de people were being fired. I didn’t remember anyone being Jong, who became Minister of Finance. By this time, both fired. People got severed and they got huge piles of money.” the news release and the accompanying communications At the briefing on September 5, 2016, Mr. Whitmarsh materials were in the final drafting stages. provided Minister MacDiarmid with a verbal overview of According to Minister MacDiarmid, Minister de Jong told the investigation. She did not see any of the underlying her that he had left her with a “pretty big problem” and evidence supporting the allegations, nor did she receive apologized in advance. Immediately after she was sworn a copy of the Relationship Web that Mr. Whitmarsh had in, Mr. Whitmarsh told Minister MacDiarmid that he had used to brief the Deputy Minister to the Premier Mr. Dyble. to brief her. Minister MacDiarmid was “horrified” by the Instead, Mr. Whitmarsh provided most of the information situation Mr. Whitmarsh described. He explained how a about the investigation verbally. In our interview with her, “whistleblower” had come forward, was ignored within Minister MacDiarmid reflected on the lack of documentathe ministry, and then took her complaint to the Auditor tion that was presented to her once she became minister: General. The resulting “complex investigation” by the Min… I never saw, like, any of the interviews or anyistry of Health had uncovered many problems. Minister thing like that at all. And … those pieces of inforMacDiarmid recalled that the problems were described mation, I feel like those were verbal… It was, you in two ways. First, researchers were allegedly finding know, people walking me through and of course ways to work around the policies and regulations that that’s why I then have to count on my memory governed access to health data. This included transferring because you can’t provide me with a briefing note personal health data onto unencrypted devices and posthat says this is what happened. sibly selling data. Second, contracts were allegedly being direct-awarded at a low rate, but the contracts’ costs And now that I reflect on that, it’s unusual. You then increased significantly, as a way to circumvent dirknow, it started out with no paper because I’d just ect-award rules. started today. There’s no time for people to give me, you know, 48 hours. This is a big explosive Minister MacDiarmid’s executive assistant, who had also issue, we’ve got to deal with it now. So I – I didn’t started in the ministry that day, recalled being taken aback even question. at the substance of the briefing and surprised by the way Mr. Whitmarsh briefed the Minister – he provided her with no options about the best way to proceed, which was inconsistent with her previous experience. This individual observed that Mr. Whitmarsh was very much directing the Minister on the next steps to take. Minister MacDiarmid’s shock at the contents of this briefing arose in part from her time at the Ministry of Labour, Citizens’ Services and Open Government, where she had But as time went on, this stands out for me. Other things that I would have met with Graham and other ADMs and so on with, I would have always had paper on them. It would be very unusual. Whereas this one continued to be verbal, and Graham and I talked about it frequently. … And I don’t remember getting a lot of paper on this. 199 200 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS When we interviewed her, Minister MacDiarmid took privacy legislation and eventually, from the Deputy Atresponsibility for her decision to appear at the press con- torney General. ference on September 6. She believed that she had to be At 5:10 p.m. on September 5, 2012, an LSB lawyer who accountable for what had gone wrong. However, it is clear is an expert in privacy warned Mr. Whitmarsh and the that at the press conference, and in subsequent media Communications Manager that by identifying the number appearances, she was operating on very little information. of people suspended and terminated, and their length Also on September 5, 2012, the Communications Manager of service, the ministry would need to consider “if the had a telephone conversation with the Vancouver Sun release of any of that information could potentially lead to reporter, Mr. Fowlie, in which the Manager confirmed the identification of the employees involved.” If this was facts related to the investigation. This conversation was the case, “the Ministry will need to treat the release of in response to the call the Communications Manager had such information as disclosure of ‘personal information’ for received from Mr. Fowlie the previous day. During that the purposes of the Freedom of information and Protection conversation, Mr. Fowlie asked if the RCMP were involved of Privacy Act.” and the Communications Manager confirmed they were. At 8:44 p.m. on September 5, 2012, the Communications The Communications Manager immediately followed up Manager wrote that the lead investigator “spoke to the with an email to Whitmarsh: RCMP this evening who said they would be willing to conHe just called and asked me straight up if the police were involved. I said they are serious allegations and we’ve notified the RCMP. firm that the ministry has contacted them and is involved in an investigation. They will also likely say that they are waiting for the ministry to complete the final piece of its We asked the Communications Manager if he knew why investigation before beginning their own.” Mr. Whitmarsh Mr. Fowlie asked about the RCMP’s involvement, given replied one minute later, “This is perfect for where we are.” that no news release had yet been issued and no other The Communications Manager told us that he contacted public statement made about the RCMP referral. He said the lead investigator to find out the status of the RCMP he had asked Mr. Fowlie, who told him that it was just file and whether they were prepared to answer questions. a guess. By confirming the information, the ministry had The lead investigator had no recollection of the email or of gone down a path from which it never retreated and, as speaking with the RCMP on that particular day, but said discussed below, despite considerable legal advice to the she did call the RCMP member around this time to “make effect that announcing the RCMP’s involvement was not sure we were on the same page.” This RCMP member advisable. In Mr. Fowlie’s news article the following day, had no record or recollection of such a conversation, and which ran before the public announcement later that day, remembered being surprised by the press conference. he reported, “Both the RCMP and B.C.’s office of the In- The employment lawyer sent an email, at 10:05 p.m. This formation and Privacy Commissioner have been notified lawyer noted that at no time in the interviews conducted about the allegations.”20 by the investigation team did any of the investigators tell the employees that they would be providing information 9.4.6.1  Legal Review of Communications Materials to the RCMP. This lawyer wrote: In the evening of September 5, 2012, the communications … although there is no strict legal obligation to do materials were provided to the Legal Services Branch so, from a moral or ethical perspective it would (LSB), with a request that LSB lawyers review them. The be preferable to let these employees know in adadvice from LSB lawyers focused primarily on whether vance of any further interviews given the potenthe news release should include mention of the RCMP. tial implications for the employees. Although this The Ministry of Health heard from the HSS lawyer as well matter is certainly not clear from a legal perspecas the lawyer who was advising the PSA, a specialist in tive, a Court may take a dim view of this failure 20 Jonathan Fowlie, “B.C. Health ministry suspends workers over privacy breach,” Vancouver Sun, 6 September 2012. CHAPTER 9 to disclose and consequently there is also a risk that, should these matter proceed to trial, punitive damages may be ordered against the government. told us that she thought mentioning the RCMP was a bad idea in general, as did the PSA investigator, and the lead investigator. However, if the report to the RCMP were to be mentioned, it should be described as a routine practice mandated by government’s core policy. The Health and Social Services (HSS) lawyer had a similar view. She told us that her advice was, first, to not say anything about the RCMP, but if the ministry insisted on mentioning their involvement, then “refer to it in terms of the OCG following through with their own legislation to make a report … don’t say that there’s a criminal investigation underway.” The employment lawyer said it would be “preferable” to communicate information about the RCMP’s involvement to counsel for Dr. Maclure and Dr. R. Warburton before an interview and sought instructions to this effect. She noted her understanding that “this may be problematic given the coincidental timing of any media announcement and that we should not be seen as pre-empting any communication from the Ministry on this topic.” The employment lawyer noted she had communicated with the lead investigator 9.4.7  September 6, 2012 and hoped to have further clarification in the morning. The On September 6, 2012, Mr. Fowlie’s story about the invesemployment lawyer also stated that, “until I spoke to you tigation, employment suspensions and dismissals, alleged tonight, I was not aware that the Employer was planning privacy breaches and the RCMP referral was front-page to hand over all of its investigation materials to the RCMP.” news in the Vancouver Sun. However, the government’s By 10:24 p.m. on September 5, the employment lawyer news release had not yet been issued, and the content questioned both the accuracy of the materials, and wheth- of the news release continued to be the subject of coner there should be mention of the RCMP at all. The lawyer siderable debate throughout the morning. wrote to the PSA Director, the lead investigator and other Referring to the Vancouver Sun story the employment LSB legal counsel: lawyer wrote at 7:28 a.m.: “I don’t think this story is that I have some concerns with the accuracy of some bad in the circumstances.” The PSA investigator replied, of the comments (for example, it suggests that the “No it could be worse and certainly gets us off the hook RCMP have already received the investigation main terms of releasing the information.” The lawyer replied terials which is not wholly accurate – rather they that she was still waiting for instructions from the lead have received some interim reports). Moreover, investigator, the PSA Director and ultimately Mr. Whitit would be preferable, I believe to indicate that marsh on whether to communicate with the employees’ the referral to the RCMP was done by the OCG in counsel directly. accordance with their legislation. Throughout the morning of September 6, 2012, LSB law … yers continued to provide advice about the news release as it related to privacy and litigation concerns. At 8:42 In speaking with [the PSA investigator] and [the a.m. the employment lawyer emailed the HSS lawyer, inlead investigator] tonight on this and other matvestigators and the PSA Director with a detailed list of ters, I have questioned whether the Ministry concerns about the public announcement: should do any media announcement, however, it appears that the Ministry is intent on proceeding ƒƒThere is always a risk of significant punitive to do so despite [the lead investigator’s and the damages when employment disputes are PSA investigator’s] cautionary warnings to the played out in the media especially in circontrary. Perhaps tomorrow’s edition of the Vancumstances where the employer provides couver Sun will confirm or assuage the concerns! inaccurate information which is the repeated The employment lawyer had serious concerns about the potential harm to individuals’ reputations and the subsequent risk to the ministry from mentioning the RCMP referral in the news release. When speaking with us, she in the media; ƒƒ I would also strongly recommend that there is no message that we have turned over our entire investigation to the RCMP since a) this is 201 202 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS not true – only interim information has been provided; and b) this may be very harmful to the reputation of individuals involved. Similarly, I’d recommend that we not comment on the monies involved – could we simply say that we are presently reviewing the contracts that are involved, but all of this is under review? ƒƒ Another key message is that we need better procedures; it would be preferable to suggest that procedures [are] in place that were not followed; ƒƒ Because this is an ongoing internal investigation – no personal information about staff should be released; ƒƒThe message should not be that there are findings – rather that this is an ongoing investigation; ƒƒ We [Ministry of Justice lawyers] have not been involved in investigation except on periphery. In one of the edits I believe that there was a comment that the Ministry of Justice was involved in this investigation, but rather on the periphery to respond to counsel. Consequently, we have not been asked to advise on the legality of the suspensions without pay, the process of the investigation or as to whether the Ministry of Health has just cause for termination. I would therefore recommend that any references to the MoJ be removed. The press conference was scheduled for 2:30 p.m. on September 6. A Ministry of Justice GCPE employee wrote a Ministry of Health GCPE employee at 12:41 p.m.: I just had a quick chat with the DAG who notes that no mention of rcmp should be in your comm materials today. Legal reasons. Pls confirm that is the case. With the press conference less than two hours away, the Ministry of Health GCPE employee quickly forwarded the message to the Communications Manager noting “It is in the first line!” The Ministry of Justice GCPE employee added eight minutes later, in an email to other GCPE employees and the Deputy Attorney General at 12:49 p.m.: “Please remove. Legal advice … should health have one of the lawyers review the comm[unications] materials?” Mr. Whitmarsh told us that he issued a directive to remove the reference to the RCMP at some point earlier in the day. At 12:53 the HSS lawyer sent an email to others in the Ministry of Justice, and then attempted to recall it two minutes later. The email read, “[the employment lawyer], this concern will now be addressed by DM Whitmarsh’s directive that all reference to the RCMP be removed from the news release.” When we asked her about why she sent and tried to recall the email, she said she did not remember: “…It does look as though maybe I thought – maybe I found out that, in fact, the opposite was true because – or that it was an earlier directive and that it since been countermanded…” At 12:58 p.m., the GCPE Communications Director for the The same lawyer then spoke to the Communications Man- Ministry of Health wrote to the ministry’s lawyer to ask for ager directly. She was hopeful that some of the advice assistance: “we need consistent direction. We are issuing was being accepted. In a further email to the PSA Direc- our media release in an hour and a half. We are briefing tor, lead investigator and others in LSB at 9:09 a.m., the the minister now and this previously went through legal lawyer wrote: channels.” The Communications Director also copied this email to Ms. Mentzelopoulos, who wrote, at 1:00 p.m., “I … just wanted to let you know that I talked with [the Communications Manager] on the phone; he am at my desk and can assist if necessary. Please let me was very receptive to my communication about know what you need me to do.” the media release and understands the concerns The HSS lawyer contacted Deputy Attorney General Riabout stating this is an ongoing RCMP investigachard Fyfe to seek his advice, and then sent an email to tion when this is not true and will scale this back GCPE staff, Mr. Whitmarsh and Ms. Mentzelopoulos at (e.g. ‘potential criminal investigation’). 1:41 p.m. recounting the conversation: CHAPTER 9 Richard Fyfe’s concerns were not communicated accurately. He didn’t say that the RCMP references were not communicated accurately. He didn’t say that the RCMP references should be removed completely. He was concerned: 1. that the references be accurate factually, and 2. that the ministry be aware of the potential reputational damage that might be caused by making the criminal aspect seem more central than it is. If, at the end of the day, there turns out to have been no criminal aspect to this, then there could be concerns about defamation. Last night we agreed that these concerns would be lessened by only referring to the Pharmaceutical Services Division and not the specific work area involved. The problem that has emerged since then is that the Vancouver Sun has revealed the specific work area, so it would be much simpler for many people to identify the individuals involved. employees and researchers at the University of British Columbia and the University of Victoria. At the same time, the lawyer suggested changes to the Minister’s and Deputy Minister’s speaking notes. The employment lawyer told us these proposed changes did not capture her preferred view. She thought the best approach would be to not have a news release, or at the very least, not mention the RCMP. If the RCMP were mentioned, it should not be front and centre in the news release. Based on what he had heard from the investigation team, the Ministry of Health Communications Manager thought that the RCMP were “absolutely going to be investigating.” He was concerned about these last minute changes. Given the timing – at this point, the news conference was less than an hour away – he turned the proposed news release over to Mr. Whitmarsh. The Communications Director recalled that she called Ms. Mentzelopoulos, who told her that Mr. Whitmarsh had to sort it out with Mr. Fyfe. As the debate continued, Mr. Whitmarsh was sufficiently The HSS lawyer then suggested rewriting the opening concerned that he did contact Mr. Fyfe directly for advice lines of the news release in a 1:48 p.m. email to all the at some time shortly before 2:08 p.m, when the Cominvolved communications staff as well as to Ms. Ment- munications Director wrote “Graham and Richard have zelopoulos, Mr. Whitmarsh, the Deputy Attorney General spoken we are good – and release and products will stay and LSB lawyers which stated: as original.” In recalling their conversation, Mr. Whitmarsh said that Mr. Fyfe “was concerned about the reputational Here are our suggested changes to the first two damage and my impression of his conversation was that paragraphs of the news release: he really was recommending it should not be in there.” Ministry of Health taking immediate steps to reMr. Fyfe recounted the phone call in his interview with spond to investigation us. He said: VICTORIA-The Ministry of Health in conjunction … it was a call to discourage him [Whitmarsh] with the Office of the Comptroller General and in from including information about the RCMP accordance with the OCG’s mandate, has notified … based on the advice he’d been getting. The the RCMP of allegations of inappropriate conduct, call began, he said, “The lawyers are telling me contracting and data-management practices innot to include reference to the RCMP or the lanvolving ministry employees and drug researchers. guage that – they want to limit the language to Health Minister Margaret MacDiarmid said tothe RCMP,” and I don’t remember exactly how he day that the ministry has been investigating said it but it was something to that effect. this matter. The investigation was supported by He then said that the minister was about to go a lead investigator from the Office of the Chief to the media and that this was in her speaking Information Officer, Ministry of Citizens’ Services notes and she wanted to. and Open Government. It is examining contracting and research grant practices between ministry 203 204 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS I explained the concerns with making that reference and I have to say … that I also talked to him about the ability to link the media announcement to specific individuals, which heightened the concern about the defamatory effect or the reputational effect of making that reference to the RCMP. Now, I – I surmise, because it’s my usual approach, and I don’t remember specifically saying this, but my usual approach is to distinguish between specific … acts, where government is prohibited from doing something and risk acts, where government is doing something that takes a risk. And I believe that what I would have done in this case is said to Graham, “I can’t tell you you can’t do it. But I can tell you what the risks of doing it are and they are significant.” We asked Mr. Fyfe if he could remember why Mr. Whitmarsh felt it was important to include mention of the RCMP: Very vaguely. I recall he wanted to include it because it was factual. I think he wanted to include – he gave me wording and told me that this was wording that was acceptable to the lawyers. And he also wanted to include it because it was with the Minister who was about to go out, go live. When we asked Mr. Fyfe whether Mr. Whitmarsh told him what decision he had made on the matter, Mr. Fyfe told us: He was – yeah, I think he – he did. He, at the end of the call, he was satisfied that the language that he had in the press release was suitably vague, and that the reference to the divisional level. The language was suitably vague that it would not be – that the defamation risk would not be a significant risk. Consistent with Mr. Fyfe’s advice about potential reputational damage, the HSS lawyer wrote to Mr. Whitmarsh, Ms. Mentzelopoulos, Mr. Fyfe and GCPE staff at 2:01 p.m. suggesting that the news release not mention the number of employees under investigation or terminated. The same email also enclosed LSB’s suggested RCMP-related edits. What happened next is the subject of conflicting evidence. Mr. Whitmarsh told us he had decided to remove the reference to the RCMP in the news release. According to Mr. Whitmarsh, it was GCPE who had the final call. He said: I did speak to the comms folk and they were really insistent that it should be in, and I was sort of at the other side saying to Richard, you know, we can continue to sort of recommend this but at the end of the day you know, as Richard knows and I know, we don’t get to decide what goes into the releases … in this government, the Premier’s office gets to decide what goes in and then you know, I was concerned about the reputational damage so there was one point in this where I definitely said, like okay I’ll deal with so I said let’s just take it out, we can’t do and then I got push back from the comms people saying no we want it in, and eventually I got to the point where I was – okay this – you know, we give them advice but they ultimately get to decide what goes into media releases. Mr. Whitmarsh could not, however, definitively say who made the decision. He acknowledged that the staff who were with him that day – the Communications Manager and the Communications Director – were both junior. The Communications Director specifically remembered Mr. Whitmarsh telling her that the press release would not be changed. She said when Mr. Whitmarsh finished his call with Mr. Fyfe, he told them that it was all a misunderstanding. The Communications Manager also remembered Mr. Whitmarsh stepping out of the room to speak with the Deputy Attorney General. We asked him if it was the Communications Director or the Deputy Minister who made the decision to stick with the original wording in the news release, and he told us that it was the Deputy Minister. Ms. Mentzelopoulos told us she would have supported the mention of the RCMP referral as long as it was true. In her view, government needed to demonstrate that it was serious about dealing with the privacy breaches, and describing the referral to the RCMP would show such leadership. However, in the interview with us, she said she had misjudged how news of the privacy breach would quickly be overrun by the news of the dismissals and the RCMP referral. CHAPTER 9 In the end, the final news release stated in the first line, “The Ministry of Health has asked the RCMP to investigate allegations of inappropriate conduct, contracting and data-management practices involving ministry employees and drug researchers.” facing these allegations due process. It also opens the Ministry and minister up to vulnerabilities and potential credibility issues as the investigation is still not complete and may be missing some of the facts. Despite the intensive discussions about the content of the news release, Minister MacDiarmid was unaware until years later that there had been internal debate or legal advice about including mention of the RCMP in the news release. No one shared the concerns we have described above with the minister. She told us: The above paragraph was prescient in describing, before the announcement, the risks that could flow from such an approach. I just did not understand the consequences of even breathing the letters RCMP. I had no idea and no one told me. 9.4.8  Analysis: Public Announcement The plan for a press conference was detailed in a draft communications plan, which listed three strategic options for the Ministry of Health to consider, ranging from “reactive” to “proactive and aggressive.” When we spoke with the GCPE Communications Manager, he did not remember the planning documents. However, he agreed that the plan was for the Ministry of Health to be both “proactive and passive,” a combination of the options listed in the draft plan. The draft communications plan is interesting, however, because it highlighted the potential risks to the Ministry of Health of providing details of the investigation publicly if a proactive approach was taken. The ministry wanted to “show leadership” and “emphasize the seriousness of the issue with the RCMP involvement.” At the same time, however, there was concern that providing insufficient information “could lead to a number of misleading or factually incorrect stories that the ministry will not be able to respond to or correct because of the ongoing investigation.” The ministry considered disclosing more details of its investigation on the basis that it would allow the ministry to “emphasize that the public and the ministry is the victim because of unscrupulous actions by a number of individuals colluding together,” therefore showing leadership. The draft plan clearly articulated the problems with such an approach, however: This approach will make it difficult for the ministry and the RCMP to complete its investigation without prejudice. It would not allow the individuals It is clear that there was considerable confusion on September 6, 2012 over the content of the press release and, looking back, who had the final say as to the contents. Whatever the general practice was, the rushed events of that day meant that the issue was being actively considered until only a few minutes before the public release. It is important to note that GCPE supported the communications approach up to and including the Deputy Minister level. Ms. Mentzelopoulos conceded that she thought that it was important to have the RCMP in the press release, “because I assumed that it was true.” The GCPE Communications Manager had already confirmed the RCMP involvement to the Vancouver Sun, which had reported the fact that morning. The decision to make a public announcement about this investigation was driven by senior public servants wanting to demonstrate that the government was fulfilling its duty to inform people whose information may have been compromised, and to reassure the public that it was in control of the issue. However, this was a problem that government created for itself. The fact that employees were suspended without pay so early in the investigation led Mr. Whitmarsh to be concerned that there would be a leak about the investigation. This prompted him to ask GCPE to become more involved in the matter, going so far as to have GCPE representatives join the weekly meetings in August 2012, where he and investigators discussed the impending dismissal decisions. Ms. Mentzelopoulos explained how a leak could affect government: … if people hear there’s a data breach and it hasn’t been – come officially from government, us saying, we’ve screwed up, we’ve had a data breach. If it’s instead somebody from the ministry saying to the press, as an unnamed source, there’s been a data breach, then you have actually a doubly worse story. Like, you have to, when you 205 206 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS make a mistake of this magnitude in government, the best thing you can do is own it quickly. Because Mr. Whitmarsh and others, including Ms. Mentzelopoulos, saw the primary issue as being a data breach, talking about the human resources decisions was one more way of government demonstrating it was serious about protecting privacy. As Ms. Mentzelopoulos told us, “I said we can’t have people thinking that we’re trying to hide something,” so if there was a data breach, “we have to … let everybody know.” This concern was given higher priority than those expressed by the lawyers about the personal privacy of employees, the impacts on the individuals or the risks to government of making the announcement in the way it did. … knowing that the RCMP has been contacted – that somebody has called the RCMP about you is actually terrifying. … I would wake up in the middle of the night. I would think about, oh, my god. … what was this horrible thing that I had done? Is the RCMP going to break into our house? … And so – so I think … as a member of the public when I’ve heard about the RCMP being involved in this, that or the other thing … I had never thought of it as being a big deal in the past. I think … being innocent is … sufficient protection from anything like that. But, in fact, it was extremely scary. The reference to the RCMP referral was based on noth- We received similar evidence throughout our investigation ing more than a single meeting with the RCMP. At that from other witnesses, even those who were not fired or meeting, described in Chapter 8, the RCMP had made it otherwise directly implicated in the investigation. clear that they would make no decision about whether to investigate until they received the investigation team’s final report. This was not a case where a criminal charge was imminent. By adopting an aggressive communications plan and mentioning the RCMP in the first line of the news release, government reinforced the impression that the RCMP referral was serious. This was not only factually misleading but showed little understanding of the significant impact the spectre of an impending criminal investigation would have, not just on the fired employees, but on others caught up in the investigation and public servants in general, who did not know or understand what anyone had done wrong. We were told of the dynamic, and often time-pressured nature of public communications. That time-pressured environment was certainly a factor in the hurried and confused events of that day. It is worth noting that the time pressure in this case was of the government’s own making. The story in the Vancouver Sun had already appeared so there was no compelling need to rush the announcement before the story broke. Postponing the announcement for a day, or even a few hours, would have allowed a more deliberate, considered decision to be made. One witness told us clearly about how the public announcement had affected him: CHAPTER 9 Findings F 18 Deputy Minister Whitmarsh made the decision to terminate the employment of David Scott, Roderick MacIsaac, Ramsay Hamdi, Ron Mattson, Robert Hart and Dr. Rebecca Warburton. There was no political interference in the dismissal decisions. F 19 The ministry did not have just cause to terminate any of the dismissed employees, though Deputy Minister Whitmarsh believed that the issue of just cause had been considered by government legal counsel. However, in the case of Mr. Mattson, Deputy Minister Whitmarsh should have followed up to address the conflict between his belief that legal advice had been provided and his advice from the Public Service Agency that valid grounds likely did not exist to dismiss Mr. Mattson. F 20 The human resources process leading up to the dismissals was improper as reflecting numerous procedural flaws: a. There was a breakdown between the PSA’s usual investigative and advisory processes. b. T he PSA did not prepare an investigative report setting out its findings of fact in relation to each employee. c. T he PSA did not provide organized and appropriate employee and labour relations advice to the Ministry of Health. d. T he weekly meetings held in August 2012 and attended by numerous ministry and PSA executives supplanted the regular process for developing advice on human resources matters and adversely impacted the quality of advice given to the Deputy Minister as well as the Deputy Minister’s opportunity to appropriately consider that advice. e. The decision-making process regarding the dismissals was rushed. F 21 Regarding legal advice related to the dismissals: a. T he PSA did not request legal opinions on whether there was just cause to dismiss each of the six employees and the Ministry of Justice did not provide such advice. b. The Ministry of Justice was asked to review some of the dismissal letters and did so. c. M r. Whitmarsh did not request such advice but had an honest but mistaken belief as to the scope of the legal advice provided to the PSA. F 22 In August 2012 many ministry executives were on vacation which resulted in gaps in knowledge, inconsistent advice and poor executive continuity in the time immediately preceding the dismissals. F 23 The dismissal decisions gave no meaningful consideration to the question of condonation when considering the issues of data handling that formed the basis for some of the dismissals. The systemic problems internal to the ministry regarding governance and management of personal health information about which the ministry was well aware at the time (and which were found to exist in the later report of the Information and Privacy Commissioner) were not considered in the context of condonation. 207 208 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS F 24 The reasonable suggestion by a ministry executive member of a data amnesty for ministry employees was not pursued. F 25 Concerns over possible public disclosure of the allegations and the ministry’s investigation, including that a number of employees had been suspended, created pressure to make a public announcement. This, in turn, accelerated the decision making on the dismissals even though the employees had all already been suspended. F 26 The decision-making process leading to finalizing the content of the September 6, 2012 news release was improper as it was unstructured, marked by confusion and, for no valid reason, rushed to meet a self-imposed deadline. F 27 The inclusion of the reference to the RCMP in the press release was wrong in that: a. I t was misleading to suggest that the matter was with the RCMP when the RCMP advised no decision would be made about whether to even commence an investigation until the ministry provided a final investigation report. b. It failed to consider the impact on individuals. c. I t effectively committed government to a public position on the conduct of the individuals, thus making reappraisal of such conduct more difficult. d. I t increased government’s legal risk related to the dismissals by adding damage to the reputation of the dismissed employees to the claims it had to defend. CHAPTER 10 10.0 / THE MINISTRY OF HEALTH’S RESPONSE TO THREE SUSPECTED PRIVACY BREACHES 10.1 Introduction In the more than four years since the terminations, the issue of health information privacy and its unauthorized disclosure has been a key part of government’s public position on this matter. Government has indicated that in 2012 the Ministry of Health was dealing with serious privacy concerns.1 Thus, in the government’s view, while the investigation may have been “heavy-handed” in some respects, it was still necessary to protect the personal information of British Columbians. 1 For example, in the October 3, 2014, news release where the Minister of Health confirmed that government had apologized to Mr. MacIsaac’s family, the government stated: “there was a series of breaches of data and inappropriate use of private information.” Ministry of Health, “Government apologises to family; reviews HR policy,” news release, 3 October 2014. In July, 2015, Minister Lake stated in the legislature: “the Privacy Commissioner confirmed that there were three incidents where data was used inappropriately. In fact, the report did go on to say that there were no mechanisms to ensure that researchers were complying with the privacy requirements as stipulated in contracts and written agreements and to ensure that ministry employees were taking appropriate privacy training and following privacy policies. As a result, ministry employees were able to download large amounts of personal health data onto unencrypted flash drives and share it with unauthorized persons.” Hon. Terry Lake, Legislative Assembly of British Columbia, Hansard, 14 July 2015, 8934 . 209 10 .0 / 210 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS On a number of occasions and in order to support its position, the government repeatedly cited a June 26, 2013 report released by the Information and Privacy Commissioner. 2 Indeed, as described in Chapter 9 of this report, the three incidents reported to the Office of the Information and Privacy Commissioner were also a significant factor in three of the employee dismissal decisions. As such, it was essential for us to understand the nature of the suspected privacy breaches reported to the Office of the Information and Privacy Commissioner and the relation between those breaches and the Commissioner’s broader findings about the state of personal health information management in the Ministry of Health at that time. View main timeline Jul 13, 2012 Lead investigator contacts Office of the Information and Privacy Commissioner to notify of investigation. Sep 2012 After receiving report of privacy breach, the Office of the Information and Privacy Commissioner commences investigation. Ministry of Health advises Statistics Canada of possible breach of agreement. Jun 2013 Jan 14, 2013 Oct 30, 31 and Nov 5, 2012 Office of the Information and Privacy Commissioner issues its report on the alleged privacy breaches and overall ministry management of health information. Government issues news release about privacy breaches. Ministry of Health sends data demand letters to former employees, contractors and external researchers. 10.2  Privacy Breaches and Condoned Workplace Conduct In this chapter we focus on the three data incidents, the determinations they were privacy breaches and the circumstances involved. Our determinations on these issues are related to our analysis of three of the employment dismissals that we discuss in Chapter 9. However, it is important to note, as we do in Chapter 9, that the question of whether an incident that is determined to be a privacy breach constitutes grounds for employment discipline, including dismissal, raises other issues such as whether the employee’s behaviour has been implicitly or expressly 2 Oct 17, 2012 condoned by the employer. Thus, depending on the seriousness, the same event can be a privacy breach but can also be conduct that does not warrant dismissal because it may be workplace conduct that is explicitly or implicitly condoned. That question is addressed in Chapter 9. 10.3  Reporting to the Office of the Information and Privacy Commissioner During the course of its investigation in 2012, the ministry’s investigation team discovered what it suspected Office of the Information and Privacy Commissioner, Investigation Report F13-02: Ministry of Health, 2013 BCIPC No. 14, 26 June 2013. . CHAPTER 10 were three discrete privacy breaches.3 In the words of the Information and Privacy Commissioner: A privacy breach occurs when there is unauthorized access to or collection, use, disclosure or disposal of personal information. Such activity is “unauthorized” if it occurs in contravention of the Personal Information Protection Act or Part 3 of the Freedom of Information and Protection of Privacy Act. 4 The Information and Privacy Commissioner’s report notes that the ministry reported the first of three suspected breaches to the Office of the Information and Privacy Commissioner on September 10, 2012. The other two suspected breaches were added subsequently. protocols rather than to laws as such. It occurs to us that some reporter might ask the minister this question directly. We won’t have time to prepare an actual opinion on that before the press conference, but we can say that, at this point, it looks to us as though there likely was a breach of section 35 of FOIPPA in each of these instances. One of the proposed statements in the “Question and Answer” document that accompanied the proposed release referred to people circumventing British Columbia’s privacy laws. The privacy lawyer made the following comment in the text of the release: I have suggested previously that we focus on contraventions of policies, not laws. There may have been breaches of the law, but I have not been asked for an opinion on that issue. I take it that the OIPC assumes that there has been a breach of FOIPPA, but I have not provided advice on that issue. Under government policy as it stated in 2012, not all suspected privacy breaches were required to be reported to the Information and Privacy Commissioner. The privacy lawyer who assisted the lead investigator and Mr. Whitmarsh told us that the ministry initially characterized the three suspected breaches as serious incidents warranting Evidently, the ministry had self-reported three disclosures a high level of concern. In the months after initially report- as breaches of FOIPPA based primarily on the lead invesing the incidents however, the Ministry of Health came to tigator’s analysis. characterize the risks associated with the breaches as low. Once the disclosures had been reported, the ministry conWe discuss this evaluation later in this chapter. tinued to correspond with the Office of the Information On January 7, 2013, in the context of providing comments and Privacy Commissioner throughout August and into on a proposed press release, the Health and Social Servi- September 2012. In a letter dated September 11, 2012, ces (HSS) Supervising Solicitor wrote to Mr. Whitmarsh the Information and Privacy Commissioner notified Mr. and the Communications Director confirming that the LSB Whitmarsh that the office had decided to conduct an inhad not provided an opinion as to whether or not there vestigation into the apparently unauthorized disclosures had been breaches of FOIPPA: by the “Ministry of Health, Pharmaceuticals Division.”5 One thing we want to point out is that we have never been approached for an opinion as to whether FOIPPA was breached in any of these circumstances – that’s the main reason we are more comfortable with you referring to rules and Between September and December 2012, with the assistance of ministry employees with the technical expertise to understand and explain the data, the ministry continued to respond to requests from the Office of the Information and Privacy Commissioner. 3 Dates of the three reported breaches according to order of appearance in the Office of the Information and Privacy Commissioner’s Investigation Report F13-02: Ministry of Health: June 6, 2012 (Incident #1), October 4, 2010 (Incident #2), June 28, 2012 (Incident #3). The breaches were reported to the Office of the Information and Privacy Commissioner in September 2012. 4 Office of the Information and Privacy Commissioner, Privacy Breaches: Tools and Resources, 2 April 2012, 3 . 5 In fact, the Pharmaceutical Services Division (PSD) was not involved in the suspected privacy breaches except that one of the recipients of data in one of the cases was a PSD employee. Our conclusion in that case is that the PSD employee who received the information was authorized to receive the information. The employee who provided the data was an employee of another division other than PSD and the two contractors that received the data in those two cases had contracts with other divisions. 211 212 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS 10.4  The Information and Privacy Commissioner’s Report F13-02 In June 2013, the Information and Privacy Commissioner issued her report into personal health information management at the Ministry of Health, including the three data incidents.6 A careful reading of the Information and Privacy Commissioner’s report is important to properly understand the findings she made and the causal factors involved. In her message at the outset of the report the Commissioner set out the importance of personal health information to the health system and health research: This data is invaluable to health researchers seeking new solutions for patients and improved health outcomes for citizens. BC is fortunate to have a strong and vibrant community of researchers who are developing and testing new health treatments, and pioneering innovative drug therapies that are saving lives. These innovations have their roots in timely and secure access to health data. It is therefore in the public interest for there to be active and effective research within the Ministry, health authorities and post-secondary institutions. However, the public, whose data it is, expects this research to be conducted responsibly and that their personal health data is managed securely in the research process. The Commissioner then addressed the three breaches: This investigation examined three breaches of personal health data for research purposes that happened because the Ministry failed to translate privacy and security policies into meaningful business practices. The primary deficiency at the Ministry was a lack of effective governance, management and controls over access to personal health information [emphasis added]. At the time the breaches occurred, there was a lack of clear responsibility for privacy within the Ministry. This was due, in part I believe, to a lack of clarity of roles and responsibilities following the centralization of some information access and privacy functions. Ministry privacy governance was further weakened by a complete lack of audit and review of employee and contractor functions relating to privacy. There were no mechanisms to ensure that researchers were complying with the privacy requirements, as stipulated in contracts and written agreements, and to ensure that Ministry employees were taking appropriate privacy training and following privacy policies.7 The Commissioner’s message then pointed the way forward for health research and noted the ministry had begun to make systemic improvements: Many of the issues relating to research would be resolved, if all researchers, whether based in the Ministry, health authorities or post-secondary institutions, obtained access to personal health data only through a secure research environment, such as PopData BC. It is important that the Ministry review and adjudicate requests in a timely manner and, should they be approved, provide access through the secure environment efficiently and without delay. I note in the report that during the course of this investigation, the Ministry has implemented a number of significant improvements with respect to governance, policy development and physical security measures. Most importantly, it is moving towards the establishment of a highly secure environment for health research that uses personal health information. The recommendations I have made in this report are essential to both facilitate access to information for health research in a more timely and secure manner and to address the privacy deficiencies identified by this investigation. Privacy 6 Office of the Information and Privacy Commissioner, Investigation Report F13-02: Ministry of Health, 2013 BCIPC No. 14, 26 June, 2013. 7 Office of the Information and Privacy Commissioner, Investigation Report F13-02: Ministry of Health, 2013 BCIPC No. 14, 26 June, 2013, 3. CHAPTER 10 and research are allies, not adversaries, in the pursuit of better health outcomes.8 10.4.1  The Commissioner’s Criticisms of the Ministry’s Management of Personal Health Information In the “Issues” section of the report the Commissioner elaborated on the systemic problems with information access privileges that existed at the Ministry of Health at that time: The investigation found that current access privilege systems at the Ministry of Health do not consistently comply with the principles or controls set out above. The Ministry does not consistently assign permissions to roles, which is the best practice. Access permissions are assigned to business groups within the Ministry and the level of permissions assigned to an individual is based on the type of group an individual belongs to. Individuals are then assigned to one of these groups. Permissions are not necessarily removed when an employee’s roles change. The Health Information Privacy, Security and Legislation Branch in the Ministry has recognized this problem and supports the implementation of a role-based access model for all employees and a reliable process for adjusting access levels for employees when their job functions change. tools in place to manage the risk such wide access poses.9 The Commissioner was critical of the absence by the ministry of any monitoring of access, use and disclosure: Further heightening the risks of unauthorized access, use and disclosure of personal information in the Ministry was a complete lack of monitoring, enforcement and evaluation. There was no audit at any level of employee or researcher compliance with privacy policies. Nor did the Ministry conduct any reviews of privacy provisions in agreements that provide for information sharing. Government policy gives the Office of the Chief Information Officer the authority to develop privacy policies and standards for ministries and evaluate their compliance. The Health Information Privacy, Security and Legislation branch and the Information Management and Knowledge Services branch in the Ministry have responsibility for monitoring compliance by the Ministry with those policies and standards. Representatives from all three told us that they lacked the resources to undertake effective evaluation or monitoring of compliance. This response, given the large volume of personal information in the Ministry is unacceptable; it indicates a lack of sufficient executive commitment, on the part of the Ministry and government corporately, to privacy and security compliance. The Ministry has acknowledged that some employees have access to levels of information beyond what they require for their jobs. Even in cases of Ministry employees who had legitimate reasons for access to a broad range of Ministry information, their ability to access, use and disclose the information and to copy it to portable storage devices, unmonitored by an access log, was contrary to the least privilege principle. The current information management infrastructure at the Ministry presents particular challenges to proper monitoring and compliance with privacy policies. Legacy databases lack easy methods to proactively detect and investigate unauthorized access and removal of information. It appears that most of the databases lack the ability to trace employee access to information.10 In simple terms, such employees had excessive access to personal information with inadequate The Information and Privacy Commissioner’s report recommendations were aimed at improving information security 8 Office of the Information and Privacy Commissioner, Investigation Report F13-02: Ministry of Health, 2013 BCIPC No. 14, 26 June, 2013 4. 9 Office of the Information and Privacy Commissioner, Investigation Report F13-02: Ministry of Health, 2013 BCIPC No. 14, 26 June, 2013 14. 10 Office of the Information and Privacy Commissioner, Investigation Report F13-02: Ministry of Health, 2013 BCIPC No. 14, 26 June, 2013 15-16. 213 214 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS policies and practices in the ministry. It was clear from our own investigation that such issues have existed for many years in the ministry and note the Commissioner’s recommendations for widespread change in how health related information is managed by the Ministry of Health. 10.4.2  The Three Disclosures of Personal Information in the Commissioner’s Report 2012, the employee provided the contractor with the requested information on a portable storage device. On June 8, 2012, the contractor noticed that the information file contained unencrypted PHNs. The contractor immediately deleted the PHNs from his work computer and returned the flash drive to the Ministry employee. Mark Isaacs, a long time and trusted ministry contractor, As for the three specific incidents, the Information and was the recipient of data in this incident. Mr. Isaacs’ conPrivacy Commissioner’s report described each of the inci- tract with the ministry was to develop and maintain an dents as breaches on the basis that the person providing information tool called Quantum Analyzer that was used the information was not authorized to disclose it. The by ministry staff.11 The contract authorized Mr. Isaacs Ministry of Health reported to the Commissioner that in to request person-level data12 from the ministry. While all three incidents, the employee was not authorized to the contract did not specifically prohibit Mr. Isaacs from provide personally identifiable data to other employees receiving personally identifiable data, he did not need data or contractors. The employee who provided this data in in this form to do the work under his contract. Once he the three incidents was Ramsay Hamdi. received ministry data, Mr. Isaacs would analyze it and input it into Quantum Analyzer. The ministry’s contract 10.4.2.1  Incident #1 The Information and Privacy Commissioner’s report de- manager and other executives responsible for his contract supported his access to person-level data as such access scribed the first incident as follows: was the purpose of the contract. The ministry had also The first case involved the disclosure of personal authorized Mr. Isaacs to seek new data sources to develop health information by an employee to a contracted the content and functionality of Quantum Analyzer, which service provider in June 2012. is what Mr. Isaacs was doing when this incident occurred. On May 31, 2012, the contractor asked a MinIn this role, Mr. Isaacs would contact various individuals istry employee for a table that had two years of in the ministry who he believed would have data useful health information for each of the approximately to improving either the content or function of Quantum 4 million people in the province, which combined Analyzer, and would receive data from them. Mr. Isaacs represented 8 million rows of information. The inwas bound by confidentiality provisions in his contract formation was needed for testing purposes. Each that required him to treat all information he received from row represented an individual, and was to have the ministry as confidential and not disclose it without up to 19 fields of health information. The fields authorization. included PHNs [Personal Health Numbers]; numOn May 31, 2012, Mr. Isaacs contacted Mr. Hamdi to reber of mental health service encounters; whether quest a set of sample Medical Services Plan (MSP) data the individual had diabetes; number and length that he could use to test a new function in Quantum Anaof hospital stays; and all services billed for the lyzer. Mr. Isaacs did not intend to use the data in Quantum person. Analyzer itself. As noted in the Office of the Information The contractor requested that the PHNs be masked or removed, as the testing process did not need such sensitive personal information. On June 6, and Privacy Commissioner’s report, Mr. Isaacs specifically requested that the data set include encrypted Personal Health Numbers (PHNs) or another unique identifier, rather 11 A more detailed explanation of Mr. Isaacs’ contract and the Quantum Analyzer tool is contained in Chapter 12. 12 “Person-level data” refers to data that pertains to an individual, rather than a population or group of individuals. It is represented as one row of data per person. However, it is not necessarily personally identifiable data, meaning the data has been de-identified to the point of anonymity and cannot be readily re-identified. CHAPTER 10 than actual PHNs.13 In response, Mr. Hamdi prepared the then in place. In this particular case, given the terms of set of MSP data. There was some back-and-forth over the Mr. Isaacs’ contract, the fact that the contract was for the following two days regarding the data, and Mr. Isaacs re- development of an information tool for the ministry’s use, turned the flash drive to Mr. Hamdi to correct data quality past information management practices that existed in the issues identified by Mr. Isaacs. Mr. Hamdi returned the ministry at the time, and the nature of the request, in our flash drive with the repaired data set. view it was not outside normal practice for an employee At this point, Mr. Isaacs noticed that the data set included like Mr. Hamdi to provide a sample data set to Mr. Isaacs. what appeared to be real PHNs. He immediately notified However, it should not have included the actual PHNs Mr. Hamdi by email and returned the flash drive and ad- rather than encrypted PHNs or another unique identifier. monished Mr. Hamdi for including the PHNs14. It was as a result of this email exchange that the incident came to the attention of the ministry’s investigation team when they were reviewing Mr. Hamdi’s emails. Mr. Hamdi’s inadvertent provision of a flash drive containing PHNs to Mr. Isaacs did amount to a privacy breach as Mr. Isaacs did not have explicit authorization to receive personally identifiable data, nor did he require personally identifiable data to fulfill the deliverables of his contract. The investigators did not discover this incident until after their three interviews with Mr. Hamdi in August 2012. The However, Mr. Isaacs did nothing wrong, and as the Ininvestigators had previously asked whether he had any formation and Privacy Commissioner noted, the breach ministry data in his possession, to which he answered that was quickly contained. Mr. Isaacs requested data that he did not. As far as we are aware, the ministry’s investi- he was entitled to under his contract. Mr. Isaacs was gation team never returned to Mr. Hamdi to ask about the under a contractual obligation of confidentiality. When whereabouts of this specific flash drive, possibly because he realized that he was provided with more than he had by the time this incident was discovered, Mr. Hamdi had asked for, he alerted Mr. Hamdi, returned the flash drive, and deleted the personally identifiable information from already been fired. Three years later, in September 2015, Mr. Isaacs con- his computer. It appears that Mr. Hamdi then deleted the tacted Mr. Hamdi about the flash drive. In his response, data from the flash drive. There was no indication at any Mr. Hamdi explained to Mr. Isaacs that the investigators time that Mr. Isaacs or Mr. Hamdi intended to use the had never asked him who had possession of the flash data for anything other than completing deliverables under drive. Mr. Hamdi said that he did recall Mr. Isaacs re- Mr. Isaacs’ contract with the ministry. Rather the incident turning the flash drive to him and confirmed that he still appears to have been an inadvertent error by Mr. Hamdi. had it in his possession. Mr. Isaacs told us that in a later discussion, Mr. Hamdi explained that he had deleted the data on the flash drive after Mr. Isaacs returned it to him in 2012. This is consistent with Mr. Hamdi’s statement to the interviewers in August 2012 that he did not have any ministry data at home. We heard from several witnesses that the ministry practice at the time was to treat contractors the same as employees with respect to data access. This is consistent with the Ministry of Health Data Access Policy that was 10.4.2.2  Incident #2 The Office of the Information and Privacy Commissioner’s report described the second incident as follows: The second case involved the disclosure of personal health information to a contracted researcher. On October 4, 2010, the researcher contracted with the Ministry to conduct data analysis. The contracted researcher subsequently submitted a request to the Ministry, under established Ministry procedures, for access to the information 13 Every B.C. resident enrolled under the Medical Services Plan is given a unique lifetime identifier for health care called a Personal Health Number (PHN). This PHN remains the same, regardless of any changes to personal status. See “Medical Services Plan (MSP) – B.C. Residents – Personal Health Identification” . 14 There was some difference in the evidence we received as to whether Mr. Isaacs or his spouse, a ministry employee, returned the stick to Mr. Hamdi on Mr. Isaac’s behalf. 215 216 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS necessary to conduct the analysis. The employee gave the contracted researcher a portable storage device with health information of over 20,000 individuals including PHNs, ages and information gathered from chronic disease registries including diagnoses and pharmaceutical histories. However, according to the Ministry, the employee, who had access to the data for his Ministry work, was not authorized to disclose data to other employees, contracted researchers or academic researchers. Ministry procedures for access to health data for research involve researchers receiving data though an approved and secure process. The device was also unencrypted, contrary to the repeated advice on this matter from this Office, provided in a series of recent Investigation Reports. There was evidence that Dr. W. Warburton met with Mr. Hamdi at the ministry in October 2010 to work on the statistical tool together. Dr. W. Warburton told us that he recalled running this data through his computer to test Mr. Hamdi’s code. The ministry was unable to locate the flash drive used in the second incident as it had occurred two years prior. The evidence suggests that it is highly likely that the flash drive had been written over and reused around that time. The investigation team was unable to determine whether the flash drive or the data ever left the ministry building. We found no evidence that it did. This incident constituted a privacy breach given that Dr. W. Warburton was not authorized at that time to receive the information and it should not have been provided by Mr. Hamdi even for the purpose of refining a statistical tool that Mr. Hamdi was developing. In this incident, Mr. Hamdi was the employee and Dr. Wil10.4.2.3  Incident #3 liam Warburton was the contractor described. It is the same incident discussed in Chapter 9 with reference to The Office of the Information and Privacy Commissioner’s report described the third breach as follows: Mr. Hamdi’s dismissal. The third case involved the disclosure in June 2012 The investigation team discovered an email dated October of Canadian Community Health Survey (“CCHS”) 4, 2010 indicating that Mr. Hamdi was providing Dr. W. information. In the autumn of 2011, another emWarburton a flash drive containing 21,000 health records ployee who was also an academic researchrelated to quetiapine, an atypical antipsychotic drug. The er, requested personal health information. The investigation team believed that Dr. W. Warburton did not personal information included Medical Services have authorization to access those records and that Mr. Plan billing records, hospital discharge summaries, Hamdi was not authorized to provide them. PharmaCare prescriptions and information gathThe email appeared suspicious to the investigation team ered by Statistics Canada under the CCHS. as in it, Mr. Hamdi said to Dr. W. Warburton, “Bob Hart is The CCHS survey collects a large volume of sensiassuming that you are not getting it until the agreement is tive personal health information on the basis of done, so tread carefully.” Given the language of the email consent and strict conditions for data use, collecit quite correctly drew the attention of the investigation tion and disclosure. There are approximately 50 team. categories of questions, including questions about As we described in Chapter 9, this data transfer appears alcohol use, drug use, mental health, self-esteem to have been for the purpose of testing the statistical tool and sexual health. The survey results also include that Mr. Hamdi was expected to develop as part of his individuals’ PHN, age, birth date, gender and full employment. We interviewed Dr. W. Warburton about this postal code. exchange. Based on all of the evidence that we reviewed, Statistics Canada shares CCHS survey results the most likely scenario is that Dr. W. Warburton ran the with the Ministry under a signed agreement that data through the statistical program on his personal lapthe Ministry not disclose any of the information top while at the ministry, for the purpose of assisting Mr. in personally identifiable form to parties outside Hamdi to refine the statistical tool he was developing. of the Ministry. Statistics Canada had promised CHAPTER 10 individuals who completed the survey that the Ministry would not disclose any of their information in personally identifiable form. On June 28, 2012, the employee gave the other employee a portable storage device with all of the requested personal information. According to the Ministry, as in the previous case, the employee was not authorized to disclose data to this individual. emails that the team reviewed mistakenly referred to the data or other information as being for Mr. MacIsaac’s project or PhD. In turn, this caused some confusion among staff about what the data was for and what Mr. MacIsaac was working on. These emails came up in Mr. MacIsaac’s interview, and he attempted to clarify for the investigation team that the reference to data for his PhD was a mistake made by others. Moreover, all of the evidence we received confirmed that Roderick MacIsaac was the employee and academic re- Mr. MacIsaac had in fact not begun doing any research as searcher described in this incident. It is the same incident part of his thesis and that, when he did begin his research, described in Chapter 9 with reference to the employment he intended to use an anonymized data set. In 2012, his dismissals of Mr. Hamdi, David Scott and Mr. MacIsaac. thesis proposal was in draft form and had not yet been approved. The proposal document itself did not use or The ministry had authorized Mr. MacIsaac’s access to cer- analyze any administrative health data. tain ministry databases in personally identifiable form for his ministry work. He was also authorized to link CCHS An investigation team member whom we interviewed de(Canadian Community Health Survey) data to the min- scribed his understanding of Mr. MacIsaac’s use of CCHS istry’s data for his work. This work was consistent with data as follows: the ministry’s agreement with Statistics Canada for use So I’m not sure what the awareness of the rest of CCHS data. Mr. MacIsaac had been given direct access of the team was or what their opinions on the to the ministry’s databases for the health data; however, matter were and at the time – so now, after havit appears that he had not yet been given direct access ing gone through the investigation and knowing to the CCHS data. Because he did not have the skill to what I know now, it’s clear that to me that the link the datasets himself, his supervisor asked Mr. Haminformation was not used for his thesis. It never di for assistance. Mr. Hamdi, with the assistance of Mr. had gone beyond the thesis proposal. There was 15 Scott , created a dataset with linked ministry and CCHS work going on around the project that Rebecca data. Mr. Hamdi then put the dataset onto a flash drive [Warburton] and Roderick had hoped would supand uploaded the linked dataset to Mr. MacIsaac’s work port his thesis work. computer. Though Mr. Hamdi, as an analyst, was not the I would say that the access that he had was acformal pathway for providing data to a ministry employcess that he should have had for the work that ee, as discussed in Chapter 9, it was not an uncommon he was doing [for the ministry]. practice at the time for employees to receive data in this way. Further, as we detailed in Chapter 9, it was generally It is noteworthy that in the Commissioner’s summary of accepted that ministry employees provide assistance to this information incident she identified Mr. MacIsaac as co-op students during their work terms with the ministry. an “employee” when describing his receipt of the data, even though she had noted earlier in her summary that he Aside from his work for the ministry, Mr. MacIsaac had was an employee who was also an academic researcher. hoped to use a similarly linked data set for his PhD, but Furthermore, while the Commissioner noted that the emin an anonymized form. He had not applied for or been ployee who provided the information (Mr. Hamdi) was not granted authorization to use either ministry or CCHS data authorized to provide it, she made no findings that the perfor his PhD. The ministry’s investigation team believed that son receiving it was not permitted to receive it. We spoke Mr. MacIsaac had received a linked dataset for his PhD. to the Office of the Information and Privacy Commissioner This belief was initially understandable given that some and confirmed that in the case of this data incident the 15 Dr. W. Warburton also assisted with converting the statistical format of the data. This is described in Chapter 9. 217 218 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS Commissioner’s finding of a breach was limited to a determination that the person providing the information was not authorized to provide it. Such a result can occur where, as here, the employee providing the information does so not in compliance with the applicable privacy policies of the ministry but the person receiving the information is a ministry employee who meets the “need to know” requirement in s. 33(1)(e)(i) of FOIPPA. Thus this privacy breach differs from the other two in that, in the other two cases a breach occurred in circumstances where the recipient ought not to have received the information whereas in this case, the recipient was entitled to receive the information but was provided the information improperly, not in compliance with ministry procedures. 10.5  Steps in Responding to Privacy Breaches the breach, attempted to contain potential unauthorized disclosures by suspending access to Ministry information by Ministry staff and external researchers.” Several senior executives from the Ministry of Health explained to us that their decision to suspend data access flowed from their obligations to contain suspected privacy breaches under the Protocol. We spoke with the Office of the Information and Privacy Commissioner regarding the Commissioner’s investigation and report. They confirmed that the Commissioner’s finding on the reasonableness of the ministry’s “immediate” containment efforts, including the data suspensions, only related to steps the ministry took following the identification of the three suspected privacy breaches, and only insofar as they related to those three breaches. 10.5.1.1  Locating the Flash Drives One of the steps taken to contain the three identified breaches was to try to locate the flash drives that were used to transfer data. The Office of the Information and Privacy Commissioner describes four key steps in responding to a known or suspected privacy breach.16 These include containing the With respect to the first incident, the investigators did not breach, evaluating the risks associated with the breach, ask Mr. Hamdi whether the flash drive had been returned notifying those impacted by it and then taking steps to to him and what he had done with it. Presumably they did prevent similar incidents in the future. This section con- not take this step because by the time they discovered this siders the ministry’s actions in response to discovering the incident he had already been fired. Based on Mr. Isaacs’ evidence, had they done so they would have learned that three breaches in the context of these four steps. it was Mr. Hamdi’s personal flash drive, that he was in possession of it and that the data shared with Mr. Isaacs 10.5.1  Contain the Suspected Breach – had been deleted from it. Suspending Data Access Prior to the discovery of the incidents in August and Sep- As described above, the inability to locate the flash drive tember of 2012, the ministry had already suspended data in the second incident was because the event had ocaccess for a number of individuals named in the complaint curred two years earlier. As such, the flash drive was likely to the Auditor General or otherwise suspected of wrong- reused in the interim. doing as a result of allegations made in the complaint. Respecting the third incident, the investigators had When the privacy breach involving Mr. Isaacs was dis- evidence from both individuals involved that Mr. Hamcovered his data access was suspended. di did not leave the flash drive with Mr. MacIsaac after The B.C. Information and Privacy Commissioner stated in uploading the data to Mr. MacIsaac’s computer. Mr. Maher June 26, 2013 report that “Overall the Ministry’s im- cIsaac told the investigators that the flash drive “was mediate breach containment efforts were reasonable…I always in the possession of Ramsay Hamdi”. Mr. Hamdi conclude that the Ministry made reasonable efforts to said he uploaded the data from the flash drive to Mr. Macontain the breaches in the circumstances.” The Commis- cIsaac’s computer and then he believed he returned it to sioner noted that “The Ministry, unsure of the scope of an administrative assistant in the building. Unfortunately, 16 Office of the Information and Privacy Commissioner, Privacy Breaches: Tools and Resources, 2 April 2012, 3-10 . CHAPTER 10 the investigators were not able to find the flash drive. The investigators told us that they searched employees’ offices and spoke with several administrative assistants in their efforts to locate it. Unfortunately, the investigators did not contemporaneously or otherwise document who they spoke with or the other steps they took to try to locate the flash drive. Also, the evidence we received was that at that time, there was no secure system in place for the flash drives in the branch where Mr. MacIsaac worked. For example, unencrypted flash drives were borrowed from administrative assistants without sign out sheets and usually wiped clean when returned. This would have made it difficult for the investigators to locate a specific flash drive once returned to the administrative assistants unless the administrative assistant remembered the specific flash drive exchange. section 73.1, where the ministry has reasonable grounds to believe that personal information in its custody or control is in the possession of someone not authorized to have it, the ministry has the discretion to issue a written notice demanding the return of the information or the destruction of electronic records. On October 10, 2012 the privacy lawyer sent draft data demand letters to the lead investigator for her review, and suggested that the employment lawyer review the letters where they related to someone who was in litigation or had threatened litigation with the ministry. At this stage, there were draft section 73.1 demands prepared for four of the terminated employees and one contractor. There were also draft demands, not made pursuant to section 73.1, for four other contractors or external researchers. The privacy lawyer advised the lead investigator that the ministry should wait for responses to these letters before 10.5.1.2  Data Demand Letters The ministry sent “data demand letters” in late Octo- asking the recipients of the letters to swear a declaration ber and early November 2012 to each of the dismissed that they did not have Ministry of Health data in their employees and a number of contractors and research- possession. ers to demonstrate that they were taking the protection On October 10, 2012, the lead investigator sent the draft of personal information seriously. However, most of the demand letter for one employee to the employment lawyer. employees and contractors who received data demand The employment lawyer advised the lead investigator that letters had no involvement in or relationship to the three the letter, and other similar letters to the other individuals, reported breaches. Thus these broader efforts are not should not be sent without further discussion, noting that encompassed in the Commissioner’s determination that in the context of litigation, it was unusual to send a letter the “immediate response” to the unauthorized disclosure asking the opposing side to destroy information that may be evidence in the case. The employment lawyer proposed was reasonable. Work on these letters began in September 2012 when the a conference call with the lead investigator and others to lead investigator spoke with the LSB privacy lawyer about discuss strategies for the return of data. the ministry’s concerns that individuals may have data in On October 12, 2012, a conference call was held with Mr. their possession that they were not authorized to have. Whitmarsh, the lead investigator, the lead investigator for The ministry decided to send letters to those individuals the Office of the Comptroller General, the PSA investigator regarding unauthorized access or use of data. Initially, the and five LSB lawyers (the privacy lawyer, the employment ministry intended to ask individuals to swear statutory lawyer, the HSS lawyer, a civil litigation lawyer and the declarations that they did not have any ministry data. The Supervising Solicitor for the Finance, Commercial and privacy lawyer drafted the declarations and sent them to Transportation Group of LSB). The key points discussed on that call were the ministry’s obligation to protect its the lead investigator on September 13, 2012. On September 26, 2012, there was a meeting between property and contain any personal information that was the lead investigator, another investigator, two HSS law- released without authorization, and the competing obyers, and the privacy lawyer, to discuss the approach to jectives of ensuring no data was destroyed that could demanding the return of ministry data. Around that time, hamper the RCMP investigation, the Comptroller General’s it was determined that the ministry would demand the investigation and the ministry’s ability to defend against return of its data under section 73.1 of FOIPPA. Under any wrongful dismissal claims. The plan developed on that 219 220 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS call was to determine whether the RCMP would shortly seize the data from individuals who were believed to have unauthorized data. If not, the government would consider whether the Comptroller General could take steps to obtain the data under section 8.1 of the Financial Administration Act. If the RCMP and the Comptroller General were not going to assist in obtaining the data, then the ministry would send letters seeking a return of the information while putting the recipients on notice not to destroy evidence that may be evidence in any future litigation. looking for, that the lead investigator was on vacation and that much of the file was “in [the lead investigator’s] head.” The lead investigator’s absence created a practical problem for the LSB lawyers and the ministry. In her absence, it was difficult to identify the specific information that the ministry believed the individual terminated employees and contractors had in their possession. There was no file that LSB could access to readily find the information necessary to complete the letters. The employment lawyer told us that it was important that the letters clearly set out the On October 15, 2012, the lead investigator met with the information that the ministry was demanding given the RCMP. Following that meeting, she told a LSB lawyer that prospect that these letters may be produced in future the RCMP had indicated that their usual timeline to exe- litigation. cute a search warrant was six to eight months. On October On October 25, 2012, the employment lawyer had a phone 17, 2012, legal counsel for the Comptroller General notified call with two members of the investigation team and was legal counsel for the PSA that his advice to the Comp- able to obtain some additional information about the partroller General was not to try to seek the return of data ticular data the ministry was seeking from one of the fired under section 8.1 of the Financial Administration Act as employees. there was a risk that such an order could be successfully When the lead investigator returned to work on October challenged. 29, 2012, she requested copies of the latest drafts of Accordingly, a determination was made that the ministry the letters. She did not further particularize the letters, would send letters demanding the return of data or per- and told the employment lawyer that Mr. Whitmarsh had sonal information. The privacy lawyer drafted the letters, directed that the letters go out that day. Following a disand the employment lawyer provided her comments on cussion between the employment lawyer and the lead the drafts. The lead investigator was tasked with par- investigator, the employment lawyer wrote an email to ticularizing the letters for each individual to request the the lead investigator as follows: specific information that the ministry believed was in their As I mentioned in my first comments on the originpossession. The task of particularizing the data demand al draft, it would be preferable to be as specific as letters proved challenging. possible with respect to the demands for return of The lead investigator was on vacation the week of Octoproperty being made in this letter as well as all ber 22, 2012. Another member of the investigation team other letters as this will make it more certain that was tasked with finalizing the letters in her absence, and specific property is returned and also lay a better had access to the lead investigator’s files. On October 24, foundation for potential litigation concerning the 2012, Mr. Whitmarsh contacted the Supervising Solicitor return of specific property. Given the ongoing naof the HSS group inquiring about the status of the letters ture of the investigation and time constraints in and indicating that he would like the letters to be sent in terms of getting this letter out asap, I understand the next 24 hours. Mr. Whitmarsh indicated that he had that no further specifics can be provided at this received correspondence from the Information and Privacy time. Commissioner, and that the ministry needed to be in a position to say what steps it had taken to mitigate the On October 30 and 31, 2012, the data demand letters were privacy breaches. The Supervising Solicitor spoke with the sent to five of the fired employees and a former contractor. employment lawyer about the status of the letters. The On November 5, 2012, data demand letters were sent to employment lawyer indicated that it was important that four contractors and external researchers. A lawyer from the letters specify which information the ministry was the HSS group and the privacy lawyer assisted in drafting CHAPTER 10 the letters. There was some discussion between the lead investigator and legal counsel regarding what version of the demand letter the contractors should receive as the lead investigator had advised that “no one has spoken to those contractors during the course of the investigation.” Ultimately, each contractor received the same form of letter, which did not include particulars of the specific data sought from each individual. sent to some individuals who had no role in the breaches. The lead investigator gave evidence that people were chosen to receive letters “just based on their review as individuals, mostly from the relationship chart,” that “they were involved with some of the projects that we were reviewing for data access and use” and that she worked with the investigation team to determine “projects and backgrounds and who had data.” She said that “there was These letters, signed by Ms. Kislock, stated that the min- no casting of wrong. It was just securing the data while istry believed the recipients to be in possession or control we were doing the ongoing investigation.” of “property of the ministry including, but not limited to, The privacy lawyer gave evidence that sending data dethird party personal information” without authorization. mand letters is standard practice where there is reason The letters stated that the recipients were not authorized to believe that personal information has been disclosed by the ministry to possess or retain any ministry informa- contrary to FOIPPA and informal attempts to recover the tion, which included documents and data stored on their information have been unsuccessful. He said that the depersonal computers or other storage devices and notes, mand letters related to the ministry’s obligation under secrecords, documents or other written information. All of the tion 30 of FOIPPA to protect personal information, and to data demand letters contained this language, irrespective meet the expectations of the Office of the Information and of any contract, data access agreement or information Privacy Commissioner to contain the suspected breaches. sharing agreement authorizing the recipient’s possession, He said that he did not give advice on whether there were access or use of data. “reasonable grounds” to believe that the recipients of the The letters demanded the return of any such ministry in- letters had personal information in their possession that formation. The letter’s recipients were given 10 calendar they were not authorized to have, and that he relied on days to demonstrate to the ministry’s satisfaction that the lead investigator to have that information. He told they were not in possession of any information, and were us that he understood that the ministry had definitively warned that if they did not do so, the ministry might initi- determined that the recipients of the letters had access ate legal action. Some of the letters referred, incorrectly to personal information that they were not authorized to in all but one case, to ongoing litigation. The letters stated have. He said that he thought that all of the employees that individuals were not to have access to data ever again. who were receiving the letters were involved in the three suspected privacy breaches that had been reported to Ms. Kislock’s exact words in the letters were: the Office of the Information and Privacy Commissioner. I wish to make it clear that you are not authorThe HSS Supervising Solicitor also told us that she underized to have access to any Ministry-owned data, stood that the ministry was sending the data demand letwhether directly or indirectly, now or in the futers as part of its response to the Information and Privacy ture. Commissioner’s investigation, and as part of the ministry’s The letters further indicated that the recipients were sub- efforts to mitigate the privacy breaches. She did not know jects of the ministry’s continuing investigation into the why data demand letters were sent to individuals not unauthorized release of data and that the Office of the involved in the privacy breaches that formed the subject Comptroller General was investigating related matters. matter of the Information and Privacy Commissioner’s It is not entirely clear from the evidence how the ministry report. determined which specific individuals should receive let- The decision to send the demand letters as part of the ters demanding the return of data. One of the objectives ministry’s ongoing response to the three suspected priof the letters was to contain the breaches and fulfill the vacy breaches is odd, since most of the recipients had no requirements under the Protocol, but the letters were connection to the three incidents reported to the Office 221 222 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS of the Information and Privacy Commissioner. When we We were told that when the breaches were first reported, spoke with the LSB privacy lawyer, he believed that the officials expressed considerable alarm to the OIPC. During letters were in fact connected to the suspected breach- the ensuing few months the ministry developed a more es. The Commissioner’s report states, “once the Ministry considered perspective on the breaches and the resulting identified the three disclosures at issue, it attempted to risk they posed. retrieve the information held outside the Ministry. The On November 29, 2012, Deputy Minister Whitmarsh statMinistry wrote letters to key individuals demanding that ed in a letter to the OIPC: they securely return any Ministry owned data or informaOur investigation into this matter did not uncover tion in their possession, including personal information.”17 any evidence or basis upon which we could conWhile correct, in fact the ministry also made the same clude that foreseeable harm to third parties could demand of individuals not involved in the three incidents. result from the breaches in question. While the Moreover, the fact that the ministry was unable to particupast employees and consultants in question demlarize the concerns about the recipients’ data access also onstrated poor judgment in failing to comply with suggests that, even by this point in its investigation, the existing approval processes, there is no reason ministry did not have a clear understanding of the nature to believe at this time that they have used that and extent of these individuals’ data access. The scope information for non-research purposes or that they of the letters was so broad as to encompass just about have made that information available to others. any government information, even that which was not These individuals are researchers whose livelipersonally identifiable. Finally, the assertion in some of the hoods depend on their being able to be trusted letters that the individuals would not be permitted data with sensitive data, including personal informaaccess ever again – combined with the lack of particulars tion. Based on the evidence, we see no reason to about the suspected wrongdoing – caused unnecessary believe, at this time, that the individuals in quesalarm among the recipients and was inconsistent with the tion would use that information for the purposes suggestion that this was a precautionary and temporary of identity theft or fraud or in any other manner step while further investigation occurred. that could result in harm to third parties. Some of the responses the ministry received to these An appendix to that letter contained a risk assessment letters are described in Chapter 12. that included the following: 10.5.2  Evaluate the Risk According to the Information and Privacy Commissioner, an evaluation of the risks of a privacy breach includes considering what personal information is involved (including the level of sensitivity), the cause and extent of the breach (including whether there is a risk of ongoing or further exposure), the individuals affected by the breach and the foreseeable harm from the breach. The assessment of foreseeable harm includes examining who received the information (for example a stranger or a known contractor) and the potential harm to the public (for example whether the disclosure poses a risk to public health and safety).18 The Ministry’s position is that there is no evidence upon which to conclude that foreseeable harm could result from the breaches in question. The following factors support such a position: ƒƒ While the past employees and consultants demonstrated poor judgment, there is no reason to believe at this time that they have used, or will in the future use, the personal information in question or would otherwise make that information available to others. ƒƒ Many of these individuals have academic research credentials and/or affiliations with 17 Office of the Information and Privacy Commissioner, Investigation Report F13-02: Ministry of Health, 2013 BCIPC No. 14, 26 June 2013, 21 . 18 Office of the Information and Privacy Commissioner, Privacy Breaches: Tools and Resources, 2 April 2012, 5 . CHAPTER 10 post secondary institutions. The Ministry cannot find any evidence that would demonstrate that the employees and consultants cannot be entrusted to ensure the ongoing security of any personal information that they may currently have. ƒƒThere is no reason to believe that there is a risk of identity theft or fraud to third parties. Despite conducting a detailed investigation, which included interviews with the former staff, there is no evidence that those persons have used or disclosed, or would use or disclose, the personal information for the purpose of fraud or identity theft or in any other manner that could cause harm to third parties. The risk assessment also stated: … the ex-staff or contractors in question all stood and still stand to significantly damage their academic standings at their respective universities, contract status with the ministry and/or professional career potential by misusing and/or enabling further unauthorized disclosure of the data. Based on reviews of email communications and interviews with the involved parties, the Ministry has no reason to conclude at this time that these parties including R. Hamdi, shared the personal information in question with other parties or that they have used or intend to use the data in a manner other than for its intended research, evaluation and/or development purposes or in a way that could potentially harm third parties. data, and if he did, his career in data analysis would be irreparably damaged. Mr. Isaacs relied on his ministry contract for most of his income, and he was passionate about the Quantum Analyzer tool that he had created, so he would not have wanted to jeopardize the contract with the ministry. Mr. MacIsaac was a mature student working as a co-op employee for the ministry. There is no reason to believe he would jeopardize his completion of his studies by using unauthorized data. In any event, we have concluded that he received the information as part of his responsibilities as a ministry employee. It is important to understand that even though the data that was provided in each incident was personally identifiable, it did not include any names, addresses or other unique identifiers other than a PHN. In order to link that information to a specific individual, the recipient of the data would have to know a specific person’s PHN. As the ministry acknowledged in a January 14, 2013, news release, “it would be difficult to match personal health numbers to identifiable individuals.”19 The Office of the Information and Privacy Commissioner’s report pointed out that the ministry’s assessment of risk “overlooked the indirect harm of loss of assurance and public trust arising from the unauthorized disclosures, especially given media coverage of these breaches, staff terminations and the Ministry’s broader investigation.”20 The risk to the public from the three incidents was very small; indeed, it was almost nonexistent. The January 14, 2013 news release from the ministry indicated “the ministry’s investigation has concluded there is minimal, if any, risk of inappropriate use of personal information.” Minister MacDiarmid stated in the news release “there continues to be no evidence that information was accessed or used This view of the breaches and the motivation of the indi21 viduals to misuse the data accords with our view. There for purposes other than health research.” was no indication that any of these three individuals had, 10.5.3 Notification or were planning to further disclose, any data that they After it reported the breaches to the Office of the Informay have received in the three incidents. It is clear that mation and Privacy Commissioner, the ministry took the such disclosure would have jeopardized their careers. Dr. position that public notification was unnecessary because W. Warburton could not have published with unauthorized the risk associated with the breaches was low. 19 Ministry of Health, “Further details released in data access investigation,” news release, 14 January 2013. 20 Office of the Information and Privacy Commissioner, Investigation Report F13-02: Ministry of Health, 2013 BCIPC No. 14, 26 June 2013, 22 . 21 Ministry of Health, “Further details released in data access investigation,” news release, 14 January 2013. 223 224 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS However, the Information and Privacy Commissioner de- 10.6  Notifying Statistics Canada termined that public notification was required. This advice was based on the volume of records, the sensitivity of the about Breach of Contract and data (the CCHS data in particular) and people’s expectReturn of CCHS Data ations that their personal information would be secured. As indicated above, it was the ministry’s own actions On October 17, 2012, Ms. Kislock and the lead investiin publicizing these matters that caused the difficulties gator contacted Statistics Canada to notify them of the with public expectations about the protection of personal suspected privacy breach involving CCHS data. At that information. time, the ministry was still in the process of determining The ministry issued a news release on January 14, 2013, the number of individuals they believed could be affected notifying the public about all three breaches and set up a by the disclosure. call centre to respond to the affected public’s concerns.22 The ministry’s press release and related materials indicated that the ministry had no evidence that the data was used for anything other than health research. This is consistent with what we found. In an email briefing other executives about the call, Ms. Kislock stated that the CCHS disclosure “was in violation of the information sharing requirements of the agreement” with Statistics Canada. No details about the breach were provided. As noted above, we conclude that the ministry’s conclusion about this incident was a result of an honestly held but mistaken belief of what had occurred. The Information and Privacy Commissioner also recommended that the ministry provide direct notification to approximately 38,000 individuals whose personal informa- Based on our review of the investigation team’s interviews tion was disclosed in the third incident involving the CCHS with some of the employees, it is clear that the ministry data. The notification was provided through letters to the had not carefully read the Statistics Canada agreement or affected individuals and the ministry also set up a call did not understand its provisions. We were unable to decentre to respond to any questions from these individuals. termine precisely what the ministry told Statistics Canada orally with respect to the disclosure, including which pro10.5.4 Prevention vision of the contract it believed was breached and how. As the Information and Privacy Commissioner’s inves- No legal advice was sought from LSB with respect to tigation continued, it focused on the ministry’s policies whether the ministry had breached the agreement with and practices with respect to data security and privacy. Statistics Canada or with respect to notifying Statistics The Commissioner made a number of recommendations Canada about a suspected breach. related to the systemic problems she identified with reFollowing being advised of this information Statistics spect to “governance, management and controls in the Canada decided to cancel its CCHS data sharing agreeministry.” The ministry accepted the Information and Priment with the ministry. Correspondence we reviewed vacy Commissioner’s recommendations and committed stated that the Chief Statistician decided to cancel the to implementing them. agreement with the ministry based on the apparent serThe ministry engaged in a number of initiatives responding iousness of the breach as relayed to them by the ministry to some of the data access issues identified throughout and the need to refresh the old agreement (which was 12 the investigation including contracting with Deloitte to years old at that time). conduct a review and making certain changes to data acOn October 19, 2012, Statistics Canada emailed Ms. Kiscess processes through a Lean Initiative. As those issues lock, letting her know to expect a letter acknowledging are canvassed in detail in the Information and Privacy that the province had breached the conditions of the data Commissioner’s report, we have not commented on them sharing agreement. In that email, Statistics Canada refurther here. quested the return of all confidential data shared under 22 Ministry of Health, “Further details released in data access investigation,” news release, 14 January 2013. CHAPTER 10 the existing data sharing agreement. However, Statistics 5, 2012. The audit was later postponed but took place Canada decided to leave the agreement in force in order to shortly thereafter. protect the CCHS data that had been provided under the The ministry spent a significant amount of time gathering agreement. Statistics Canada requested that the ministry and returning the CCHS data to Statistics Canada. The not provide the data to any third parties, including the agreement is still in force today but all of the CCHS data police as indicated in section 6 of the existing agreement. has been returned. The ministry only has access to the They assured the ministry that following an onsite audit or public CCHS files, which do not include personally identireview it, would enter into a new data sharing agreement. fiable information. Without this information, the records On October 30, 2012, the Chief Audit Executive of Statis- cannot be linked to the ministry’s administrative health tics Canada wrote to Ms. Kislock confirming that Statistics data, limiting the utility of the CCHS data to the ministry Canada’s Internal Audit Services would be performing an and to health research. audit of its data sharing agreements with the ministry The ministry and Statistics Canada have been working on that would include the agreement respecting the CCHS another agreement since 2013. We have been advised data. The audit was scheduled for the week of November that it is not yet finalized. Findings F 28 As confirmed in the Information and Privacy Commissioner’s June 2013 report, the privacy breaches happened because the ministry failed to translate privacy and security policies into meaningful business practices. F 29 In the privacy breach involving Mark Isaacs, Mr. Isaacs acted appropriately. F 30 In the privacy breach involving Roderick MacIsaac, Mr. MacIsaac was improperly provided with the information but he was authorized to receive the information and did so as a ministry employee. F 31 The actual risk arising from the privacy breaches was low, but the perceived risk due to the government’s own September 6, 2012 announcement elevated the public concern. 225 226 MISFIRE: THE 20l2 MINISTRY OF HEALTH EMPLUYMENT TERMINATIUNS AND RELATED MATTERS CHAPTER 11 227 11.0 / MINISTRY OF HEALTH INVESTIGATION INTO EMPLOYEES CONTINUES AFTER THE TERMINATIONS: SEPTEMBER 2012 TO OCTOBER 2013 11.1 Introduction After the termination decisions in September and October 2012, the investigation into Ministry of Health employees continued. This section of the report describes four parts of the investigation that occurred between September 2012 and October 2013. First, we describe how the investigation team continued to conduct interviews and broadened its scope to investigate additional employees who it suspected of wrongdoing. This resulted in disciplinary decisions against three more ministry employees. Third, the grievances filed by the three fired unionized employees – Ramsay Hamdi, David Scott and Roderick MacIsaac – proceeded toward arbitration but were ultimately settled before a hearing. Fourth, the lead investigator continued to have sigSecond, the investigation team continued to search nificant contact with the RCMP and handed over for evidence to support the September and October material that the team had gathered in the investidismissal decisions because the terminations were gation throughout the fall of 2012 and 2013, including being contested by the fired employees. Little docu- disks containing Canadian Community Health Survey mentation about the rationale for the terminations (CCHS) data collected by Statistics Canada. had been assembled before those decisions were made, so the team needed to put together new material to assist with the litigation. 228 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS View main timeline Sep 7, 2012 Sep 23, 2012 Oct 25, 2012 Dec 2012 Investigation team continues interviews with Ministry of Health employees. Public Service Agency decides to hire outside counsel to represent employer in arbitrations of grievances filed by Ramsay Hamdi, David Scott and Roderick MacIsaac. RCMP notes indicate no information yet received from Ministry of Health. Dates in May, June and September 2013 set for hearing of grievances. Apr 25, 2013 Lead investigator provides storyboards to RCMP. Feb 25, 2013 Feb 14, 2013 Jan 9, 2013 Dec 10, 2012 Final Ministry of Health investigation team interview of Ministry of Health employee. Lead investigator provides RCMP with emails. Lead investigator meets with the RCMP. Ministry of Health provides CCHS data to RCMP. Jun 25, 2013 Jul 17 & Aug 14, 2013 Sep 4, 2013 Sep 10, 2013 Mr. MacIsaac’s and Mr. Scott’s grievances settle. Lead investigator provides university records to RCMP. Lead investigator meets with RCMP and says she plans to provide final report by end of October. RCMP returns CCHS data files to lead investigator. Mr. Hamdi’s grievance settles. 11.2  Additional Interviews 11.3  Expansion of Scope The investigation team continued to conduct interviews after the terminations. The team conducted in excess of 28 interviews with 19 public service employees between September 7, 2012, and February 25, 2013. The purpose of these interviews was two-fold: to further explore the allegations of wrongdoing that had already been raised and to address new suspicions that the team had developed. The lead investigator told us that the team was continuing to “follow the data.” The investigation team widened its investigative net to include additional employees during this time. In the fall of 2012, it focused on individuals at the more senior level in the Pharmaceutical Services Division (PSD). It also began to investigate individuals who had no connection to either the initial complaint or to the fired employees. Although no additional public servants had their employment terminated, the ministry nonetheless imposed disciplinary measures on three employees as a result of the additional investigative work. Records do not exist for all of the interviews conducted in this time frame. However, based on the records we have None of these three individuals has been identified publicreviewed, many of these interviews shared the charac- ly as being disciplined as a result of the ministry’s investeristics we identified in Chapter 8; a failure to provide tigation. We interviewed each of them and assessed the witnesses with appropriate disclosure or notice of alleg- veracity of the allegations made against them based on ations, a lack of objectivity and a disrespectful approach. their own evidence, that of other witnesses and documentary records. In each case, we concluded that the employees were treated unfairly and the disciplinary measures taken against them were unjustified. We have decided CHAPTER 11 not to identify these individuals or describe their work or experiences in a way that reveals their identities in this public report. Instead, we have written to the Deputy Minister of Health with our detailed findings concerning these individuals and will follow up with the ministry on the steps it is taking to implement the recommendations made in Chapter 18. conduct was that she had sent infrequent emails while at work to her Blue Thorn colleagues during times that she thought were her coffee breaks but that others viewed as work hours. Nevertheless, the employee was disciplined and the data access she needed to do her work was also suspended. As the investigators’ scope continued to widen they foWhile we will not name these individuals in this report, we cused their attention on another ministry employee who believe it is important to relate some of their experiences they understood may have been connected to the data anonymously to illustrate both the extent to which unfair- that they believed had been breached. The investigators ness occurred as well as to demonstrate the steps that interviewed this individual five separate times. During his a senior ministry executive took to intervene in support first interview, he realized that the investigation team funof her employee. damentally misunderstood his role in the ministry. Despite his increasingly adamant attempts to explain what his role Two public servants came under scrutiny by the investigation team because they happened to work for Blue actually was, the investigators persisted with their misThorn Research and Analytics Inc., which itself came under understanding, levelling serious allegations against him suspicion solely because of a connection with Dr. William and accusing him of not being truthful when he attempted Warburton.1 When reviewing their roles in the firm, the to correct them. investigators learned that both individuals were also full- The investigator suggested to the same individual of improperly doing something that was not only approved of time employees with the province. The Standards of Conduct for public service employees by senior ministry executives, but also required by a conpermit employees to hold other employment outside gov- tract to which the ministry was a party. The investigator ernment when certain conditions are met.2 The evidence also suggested this individual had breached a term of an we reviewed is that the two employees’ respective min- agreement when the term referred to did not exist. istries permitted the employees’ employment with Blue Thorn. In one case, the ministry provided express written consent. In the other case, the ministry hired the employee with the full knowledge that she worked for the firm and approved a contract with the firm (in which her name was listed) with the knowledge that she was a ministry employee. While the investigation team made numerous allegations of impropriety against the latter individual in support of their conclusion that she was in a conflict of interest, the only evidence of a possible issue with her The lead investigator recommended that this employee be terminated for cause. This view was not shared by all on the investigation team. The PSA investigator recalled: You know, I think the [lead investigator] really wanted to see, like she really had a problem with [the employee’s] behaviour, and I think at one point had wanted to see him terminated, and, you know, I certainly stepped back from this one and let [other PSA staff] deal with [the lead investigator] on the follow-through and because we had 1 See Chapter 12 for a discussion of the investigation into Blue Thorn. 2 The Standards of Conduct state: “Employees may hold jobs outside government, carry on a business, receive remuneration from public funds for activities outside their position, or engage in volunteer activities provided it does not Interfere with the performance of their duties as a BC Public Service employee; bring the government into disrepute; represent a conflict of interest or create the reasonable perception of a conflict of interest; appear to be an official act or to represent government opinion or policy; involve the unauthorized use of work time or government premises, services, equipment, or supplies; or gain an advantage that is derived from their employment with the BC Public Service. Employees who are appointed as directors or officers of Crown corporations are not to receive any additional remuneration beyond the reimbursement of appropriate travel expenses except as approved by the Lieutenant Governor in Council.” British Columbia, “Standards of Conduct for Public Service Employees - Outside Remunerative and Volunteer Work” . 229 230 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS all just agreed behind the scenes that this guy hadn’t done anything … worthy of termination… Another member of the investigation team acknowledged in retrospect that “to take a disciplinary action against [the employee] was not appropriate and unnecessary and didn’t really meet the objectives of the ministry in securing anything.” During her interviews with the investigators, this employee repeatedly provided evidence that contradicted many of the investigators’ assumptions about the issues they were examining. Rather than considering that they may be wrong, the investigators interpreted her evidence as indicative of lack of managerial oversight and an attempt to shift the blame for her alleged misconduct to others. The intervention of this individual’s Assistant Deputy Min- As with the other two employees who were disciplined afister also served to mitigate the impact on this employ- ter the terminations, the conclusion that this employee had ee. The Assistant Deputy Minister placed considerable engaged in misconduct lacked an adequate evidentiary pressure on the investigation team to produce evidence basis. The investigators drew conclusions based on inferjustifying discipline. On review of the information that ences drawn from emails, without contextual knowledge was eventually provided, the Assistant Deputy Minister of the program areas or a full analysis of the Standards was unable to conclude that the employee had acted in of Conduct. As a result, the reasons for the discipline the manner alleged. Despite this, the individual was still against this employee were without merit. Ultimately, the inappropriately disciplined, albeit to a much lesser de- ministry’s decision to discipline this employee was wrong gree. It is our conclusion, based on the evidence we have because it was the result of an unfair process and not reviewed, that the discipline was unjustified because it supported by the evidence. was based on an assumption that the employee had provided administrative health data to someone who was not 11.4  Development of Storyboards authorized to possess it. Based on our investigation we As we have described in Chapter 9, the investigation team believe this was not the case. did not create binders assembling all the necessary inforNonetheless, the fact that this Assistant Deputy Minister mation. Reports to document the evidence and rationale was willing and able to review the evidence against the for the employee termination decisions made in Septememployee and challenge the investigation team’s findings ber and October 2012 were not assembled in one place shows the importance of having an independent assessfor Deputy Minister Whitmarsh. The normal practice in ment of potential employee discipline decisions at the dismissals is for all such information to be prepared in executive level. The Assistant Deputy Minister was able a single binder for consideration by the decision maker. to put the brakes on a process that may otherwise have When all of these employees commenced litigation or filed resulted in termination. As we have described in Chapter grievances, the lack of documentation created problems 9, the failure to appropriately use such controls contribfor legal counsel who were defending the litigation and uted to the poorly informed decisions to terminate other handling the grievances. employees. Due to the lack of already-existing particulars, legal counAnother of the senior employees who was impacted dursel requested that the investigation team develop what ing this phase of the investigation did not receive such came to be known as “storyboards” or “incident sumsupport. While the ministry did not dismiss her, she was maries.” These documents compiled for litigation support disciplined in a way that negatively impacted her employpurposes outlined the allegations against the employees ment status and pay. The ministry’s actions would have along with the evidence the team had collected to supconstituted a constructive dismissal at law had she not port those allegations. One member of the investigative accepted the result. This employee was interviewed three team told us that “lawyers couldn’t make sense of it so it times by the investigators with no notice that her conduct was a matter of making it something consumable.” The was being questioned, no particulars of a case against her storyboards were intended to be used to “support any and no reasonable opportunity to respond. litigation.” CHAPTER 11 These storyboards were completed between mid-March and early May 2013. The storyboards were intended to be brief narrative descriptions of the incidents of wrongdoing for which the employees were terminated. Additional resources were added to the team to assist in compiling the storyboards. They were compiled primarily by the investigator who worked from an office in New Westminster and some short-term auxiliary employees – former criminology students – who were hired to support this work. These individuals drafted the narrative, then sent the storyboards out to the “subject matter experts” on the team who were expected to identify evidence to support the allegations. The person responsible for compiling the storyboards explained how the procedure would work: We did incident summaries for all the key players with all of their major allegations … in terms of the steps taken around if there was policies or procedures that were not correctly followed … I can’t speak to that because I’m not the HR executive or subject matter expert, but from [the PSA investigator’s] opinion, there was because these are the things that she would bring to my attention as potential pieces of evidence to support allegations or concerns around conflict of interest or, you know, granting favour to certain individuals. We heard from more than one team member involved in reviewing emails after the terminations who said that the focus of their work at that time was to find evidence to support decisions that had already been made. In the words of one team member: … so I would characterize the investigation that the team was undertaking as not looking for information necessarily that supported a different view, … but more to support the statements of wrongdoing that had already [been] made. compiling the storyboards attempted to draw in every possible issue to better support the ministry’s case. The investigation team looked for new allegations against the terminated employees and in doing so, the investigators sought out emails from as far back as 2003, nearly a decade prior to the termination decisions. 11.5  Grievances and Arbitrations The three unionized employees who were fired in September 2012 – Ramsay Hamdi, David Scott and Roderick MacIsaac filed grievances with respect to their terminations. Mr. Hamdi and Mr. Scott both sought reinstatement, to be made whole, and damages for “wilful misconduct” in the manner of their dismissals. Mr. MacIsaac sought lost wages for three days remaining on his co-op term, confirmation that he had permission to access the data that he received, and to “clear” his name within the Public Service Agency (PSA) so that he could be considered for jobs with government. All of the unionized employees eventually also sought damages for defamation. By September 23, 2012, the PSA decided to bring in outside counsel to represent the employer in conducting the arbitrations. The PSA designated a Senior Labour Relations Officer to be the instructing client. By December 2012, dates had been set for the arbitration hearings. Mr. Scott’s arbitration was scheduled to be heard on May 14, 2013, to be followed by Mr. MacIsaac on June 26, 2013, and then Mr. Hamdi on September 17, 2013. Mr. MacIsaac died before the date set for the hearing. The hearing process nevertheless proceeded following his death. In the interim, it was intended that the investigation team would provide legal counsel with the evidence to support the government in the arbitrations. Early in the process the Senior Labour Relations Officer spoke directly to Mr. Whitmarsh. She told us that she explained to him that It was, of course, appropriate for the ministry to provide their legal counsel with documents relating to facts at while she understood that the Deputy Minister was the issue in the litigation, and also to assist their lawyers in only person who had the statutory authority to terminate an individual, often an Assistant Deputy Minister who did putting together their defence. the bulk of the work would testify at an arbitration hearing, However, because the ministry had to build the case after because they would have the greater knowledge of the the fact, and because the investigation was not well docufacts. Mr. Whitmarsh explained to us that he told the PSA mented prior to the termination decisions, the individuals that the task of testifying should be up to the investigators 231 232 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS who assessed the severity of the wrongdoing and recommended appropriate action. He told us he made it clear to the PSA that he would not testify. in relation to allegations that the government had made comments about Mr. Scott that were defamatory. Prior to Mr. Scott’s arbitration, government’s counsel brought an As the time for Mr. Scott’s arbitration approached, outside application to sever the defamation claim from the grievcounsel became frustrated with the lack of support they ance proceedings. The arbitrator concluded that he did not were receiving from the investigation team and encoun- have jurisdiction to hear Mr. Scott’s defamation claim. The tered challenges in finding witnesses for the hearings. As arbitrator’s decision ultimately made it easier for the govhearing dates drew closer, the PSA attempted to convince ernment to reach a settlement of the grievances because Mr. Whitmarsh that, in accordance with the Public Service it no longer had to address the defamation allegations in Act, he was the only person who had the authority to the context of subsequent settlement negotiations. terminate and therefore should be the one to testify. Mr. The arbitration process was temporarily derailed when Whitmarsh explained that he had merely followed the one of government’s lawyers who was planning to conadvice of the PSA investigator regarding the terminations duct the arbitrations became ill. The first hearing into Mr. and suggested that the PSA was conducting “revisionist Scott’s grievance was adjourned and rescheduled for June 25, 2013. In the interim, Mr. Whitmarsh’s appointment as history.” The PSA investigator wrote to outside counsel on April 25, the Deputy Minister of Health came to an end. 2013 indicating that if she testified, she would testify that Mr. Whitmarsh told her that anyone who had engaged in misconduct would be terminated: We had a mtg to discuss this with all the ADMs and [the lead investigator]. It did not go well. Graham is insistent that I need to testify. He says he will get up there and say that he did what I recommended. I tried to explain that it is fine to say that you considered and accepted LR [labour relations] advice, but you need to say whether or not you agreed and why. I cannot go on the stand about this issue given that what actually happened was that Graham said anyone caught doing this would be fired and we worked under that umbrella. He is going to talk to the ADM who delivered the termination to see if he will go up. This is a nightmare. The ADMs, not surprisingly, are completely backing him. Outside counsel wrote back five minutes later: We won’t put you on the stand. We will see how our next meeting goes with Graham. When we met with him yesterday he seemed in the end to get to the point whereby he was content to say the relationship of trust had been broken by Scott’s actions. In April and May 2013, the union provided particulars of Mr. Scott’s claim to counsel for the PSA, including particulars On June 25, 2013, the day the hearing was to proceed, Mr. Scott’s grievance was settled. That same day, the union withdrew its grievance with respect to Mr. MacIsaac, and settled the matter on the basis that his estate would receive a sum equal to three days’ wages, which was the amount of time which remained on his co-op term. The union and government settled Mr. Hamdi’s grievance on September 10, 2013. The employment lawyer, in briefing the Deputy Attorney General on the settlements, noted that all of the included employees’ claims “have been settled on terms favourable to the Employer.” An Assistant Deputy Minister in the PSA confirmed to us that the settlements were viewed as a very good result for the province. He told us that the PSA has since heard from the union that it now views the settlements as unfair, particularly in light of the settlements obtained by the terminated excluded employees. All of the grievances were settled before the ministry recognized that there were significant flaws in the manner in which the investigation was carried out. As bargaining unit employees, Mr. Scott, Mr. Hamdi and Mr. MacIsaac were not able to pursue their claims to an individual remedy; instead, their grievances were settled at the instance of the BCGEU. The union, in turn, was reliant on the government’s assertions that it had indeed found evidence of misconduct and had done so through an appropriate and fair process. Accordingly, the questions of whether CHAPTER 11 the investigation team followed a fair process, and the extent to which government had evidence to support its termination decisions, were not known to the same extent as has now become evident. to Statistics Canada. This is discussed in greater detail below. On January 9, 2013, the lead investigator met with the RCMP (members of the Investigation and Forensic Unit [IU] from the Office of the Comptroller General were also in attendance). According to the RCMP member’s notes, at this meeting the lead investigator stated that “their tech people have pulled all the emails. She will hand over all their materials electronically.” In explaining the issues, she described that “data is very valuable to researchers and pharmaceutical companies” and gave the names of “potential criminal suspects,” which included the fired employees, as well as other individuals the team had investigated or interviewed. The grievances were settled on substantially less favourable terms than the settlements the government reached with the excluded employees. We have already noted that the union withdrew Mr. MacIsaac’s grievance in exchange for three days wages paid to Mr. MacIsaac’s estate. Mr. Scott and Mr. Hamdi’s grievances were resolved without reinstatement of the employees or any financial compensation for lost wages, lost opportunity or for damages for the manner of dismissal. The unionized employees did not pursue their defamation claims once those claims were severed from the grievance proceedings and accordingly On February 14, 2013, the lead investigator met again with the settlement negotiations did not address any reputa- the RCMP. At this meeting, the lead investigator said she tional harm the employees may have incurred. expected to hand over all the evidence “on each employee” by the end of the month. At this point, she gave July 31, 2013, as an anticipated end date for the investigation. 11.6  Ongoing Communications with During this meeting, the lead investigator provided the the RCMP RCMP with a hard drive containing approximately 6,500 When she first spoke with the RCMP in August 2012, the emails from one of the targeted employees. That same day, lead investigator had promised the RCMP member that the lead investigator emailed Lindsay Kislock, Assistant he would soon receive a copy of the ministry’s final in- Deputy Minister of Health Sector Information Managevestigation report for review. This never happened as the ment and Information Technology, to let her know “that completion of the report was first delayed and then it was the RCMP today received the complete evidence package never finalized. However, between December 2012 and for MM. Additional evidence discovered in the next phase August 2013, the lead investigator proactively disclosed will be sent to them by found date for MM [Malcolm Mato the RCMP a significant amount of information her team clure]. I have confirmed with the RCMP that information on had gathered. The purpose of the proactive disclosure RW [Rebecca Warburton] and WW [William Warburton] to the RCMP was unclear since the police had said they will be provided by the end of next week. Will keep you would make a decision only following receipt of a final updated on the evidence transfer process.” report from the ministry’s investigation. On October 25, 2012, a member of the investigation team contacted the RCMP to determine how the RCMP was responding to Freedom of Information (FOI) requests. The RCMP member he spoke with made a note of the conversation that said, “we have not rec’d any info from MOH yet & [therefore] have not started any investigation. Nothing to say.” On December 10, 2012, the lead investigator provided the RCMP with disks containing the CCHS data belonging On February 27, 2013, one of the RCMP members assigned to the file made a note of an internal conversation with another member: “we have not rec’d the data needed to form an opinion if a criminal offence has occurred. It will be months before this happens.” On April 25, 2013, the lead investigator provided the RCMP with a binder containing a series of storyboards developed by the team. As described above, these storyboards were litigation support documents that summarized allegations made against the fired employees, including new allegations not part of the original termination decisions. The RCMP member reviewed the storyboards over the next 233 234 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS two months but concluded that the material in the story- investigation team in late 2012, and 2013, said he tried to explain to the lead investigator that simply providing boards did not warrant an investigation. On July 17, 2013, the lead investigator forwarded to the emails without context was not helpful for the RCMP in RCMP by email a copy of a letter sent to the University terms of beginning an investigation. However, the lead of British Columbia on June 13, 2013, to request finan- investigator continued to provide such materials until the cial information about Ministry of Health contracts and Ministry of Health’s investigation ended in the fall of 2013. agreements. In a separate email, the lead investigator 11.6.1  Providing CCHS Data to the RCMP forwarded to the RCMP “the results or shall I say what As described in Chapter 10, the Ministry of Health advised they sent” of a similar information request that the MinStatistics Canada on October 17, 2012, that it believed it istry of Health had sent to the University of Victoria. These (the ministry) had breached the agreement in relation to included requests for contracts and financial information. the CCHS data. It was likely on that October 17, 2012 call Also on July 17, 2013, the lead investigator forwarded to to Statistics Canada that Ms. Kislock or the lead investhe RCMP a “briefing table” summarizing the allegations tigator told the federal government that they wished to against all of the fired employees and setting out the next provide CCHS data to the RCMP, in the form of the CCHS steps for the investigation team. She also forwarded a disks that had been discovered in the locked desk drawer similar “briefing table” summarizing allegations against of one of the fired employees. external contractors and researchers. The principles underlying the importance of official statisOn August 14, 2013, the RCMP received from the lead in- tical information provide context for why Statistics Canada vestigator two disks containing an Excel spreadsheet and would object to the ministry providing the CCHS data to other data, along with copies of contracts and financial the RCMP. Statistics Canada states that “Objective statisinformation from the universities. The RCMP member who tical information is vital to an open and democratic society. received the disks noted that most of the files could not be It provides a solid foundation for informed decisions by opened in their current format and that the spreadsheets elected representatives, businesses, unions and non-profit required explanation. Two days later, the RCMP member organizations, as well as individual Canadians.”3 Statistics noted she was able to open the files with some assistance Canada has committed to maintaining the confidentiality and one file alone contained 6,707 emails. On August 27, of the information that it collects from Canadians. That 2013, the RCMP members involved in the file discussed commitment “is enshrined in the Statistics Act and the the need to contact the lead investigator about the “data Agency’s various policies and practices that frame its data dump.” The RCMP member reiterated that “I require the collection, analysis and dissemination activities.”4 final report instead of bits and pieces.” The agreement between the ministry and Statistics On September 4, 2013, the RCMP met with the lead in- Canada prohibited the ministry from sharing the CCHS vestigator who, at that time, said she would complete data with third parties, except in certain enumerated her final report before the end of October. She had been circumstances, and providing the data to the RCMP was in contact with the IU Director about that investigation, not one of them. The evidence indicates that Statistics and, according to the RCMP member’s notes, “once she Canada made it clear to the ministry that it was opposed has their report and hers she will make one for the RCMP.” to the ministry providing the CCHS data to the RCMP. In each instance where the lead investigator provided the In an October 19, 2012 email to the ministry, Statistics RCMP with material from her investigation, the RCMP de- Canada asked that, in accordance with the existing agreeclined to investigate, taking the position that it required a ment, the ministry refrain from providing confidential data final report before it could do anything. One RCMP member to third parties, including the police. Ms. Kislock then we spoke with who was involved in the meetings with the sent an email to Mr. Whitmarsh indicating that Statistics 3 Statistics Canada, “About us – What we do” . 4 Statistics Canada, “About us – Privacy impact assessments” . CHAPTER 11 Canada had agreed not to cancel the agreement but “they still have an issue with us providing the data to the RCMP for evidence.” Mr. Whitmarsh replied to Ms. Kislock the same day, indicating that “If RCMP need we will supply it. Talk to our lawyers.” Ms. Kislock replied that “We are waiting on our lawyers prior to responding. We are going to give the RCMP what they need – just looking for a way to do it that can sell to stats can.” rights of an employer to search employees’ computers and the potential impacts of the employer providing information to the police.5 The Cole decision stands for the proposition that, where an employer obtains evidence as part of an employment investigation and subsequently provides it to the police without judicial authorization, an employee’s right against unreasonable search and seizure may be infringed. That day, the employment lawyer Mr. Whitmarsh’s direction to obtain legal advice was fol- forwarded a link to the decision to the various lawyers lowed. However, the Ministry of Health did not follow involved in the Ministry of Health and the Office of the that legal advice, which was to not provide the data to Comptroller General investigations, noting that the case sets out risks associated with sharing information with the the RCMP. police. The PSA investigator sent an email to the employAlso on October 19, 2012, the employment lawyer, the ment lawyer and outside counsel indicating that nothing privacy lawyer, and a Health and Social Services (HSS) had been handed over to the police, and that she would lawyer had a conference call with the lead investigator. email “everyone involved” to ensure that “nothing gets On this call, the employment lawyer learned about the handed over until a warrant is issued.” The employment issues relating to the CCHS data. The lead investigator lawyer replied to the PSA investigator noting that the indicated that the CCHS data was key to the RCMP inves- police might already have received extracts of emails tigation, but that Statistics Canada had taken the position from the interim investigation report and that it might be that the data should not be released to the RCMP. On the prudent to check in with the police to see what their next call, it was agreed that the employment lawyer would steps might be in light of the Cole decision. arrange for an articling student to draft a memo regarding Statistics Canada’s authority to prevent the province from On October 26, 2012, the HSS lawyer wrote to the lead investigator as follows: “looks like the RCMP will have to sharing the CCHS data with the RCMP. get an order for the info. Otherwise we cannot give it to On October 19, 2012, an articling student prepared a memo them. We can discuss on your return.” about the risks of providing the CCHS data to the RCMP against the wishes of Statistics Canada. The employment On October 30, 2012, the HSS lawyer forwarded a copy of lawyer forwarded the memo to the privacy lawyer and the the memo to the lead investigator, noting that “there may HSS lawyer, noting that the articling student concluded, be personal liability for MOH employees who divulge info among other things, that “there may be some liability for that was collected by Stats Can.” The lead investigator replied that she thought the issue of personal liability arose provincial employees who release data to the police.” for Statistics Canada employees rather than Ministry of On October 22, 2012, the HSS lawyer and the privacy Health employees. The HSS lawyer replied noting that lawyer discussed the memo. The privacy lawyer followed Statistics Canada deems provincial employees to be Staup their discussion with an email noting that, after re- tistics Canada employees for the purpose of dealing with viewing the memo, he remained of the view that the police Statistics Canada’s information. He wrote that although should seek an order to compel production of the Statistics there is a question as to whether that would “hold up in Canada data. court,” the Ministry of Health did agree to that arrangeAlso on October 22, 2012 outside counsel, hired to rep- ment with Statistics Canada. resent government in the grievance arbitrations, wrote On October 30, 2012, the lead investigator had a phone call to the employment lawyer and the PSA investigator to with an RCMP member about the CCHS data. The RCMP provide them with an overview of a recent Supreme Court member provided us with his summarized notes of that of Canada case (the Cole decision), which dealt with the conversation, which indicate that the lead investigator 5 R. v. Cole, 2012 SCC 53 [2012] 3 S.C.R. 34 [Cole] 235 236 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS “identified that the data was evidence of the fact that the person had possession of, and was transferring data (evidence of the offence).” On that call, they discussed the prospect of the RCMP seizing the disks and then seeking judicial authorization to keep the disks in its possession. investigator about the impact of the Cole decision. Following the call, the HSS lawyer wrote an email to the privacy lawyer noting that “apparently the RCMP already has the StatsCan information” and that the call related to whether there were any risks to the government providing the RCMP with “information on the government servers in relation to government work being done by the various employees and contractors.” The privacy lawyer wrote to the lead investigator and the HSS lawyers noting that if the information was “core biographical data” then the police should seek judicial authorization to obtain it, rather than the ministry simply handing it over, and suggested that one of the constitutional lawyers could provide further advice as to whether the nature of the information engaged Charter of Rights and Freedoms issues. On November 14, 2012, the HSS lawyer sent an email to a junior lawyer in his group, noting the privacy lawyer’s opinion that the RCMP should seek an order to compel production of the CCHS data, and asking that lawyer to research what kind of order or other authority would allow the Ministry of Health to release information to the RCMP. On November 15, 2012, the junior lawyer provided the HSS lawyer with a memo that set out, among other things, the statutory authority of the RCMP to obtain a warrant to search and seize and to compel production of evidence. The HSS lawyer told us that he believes he gave a copy of The HSS lawyer told us that the ministry’s desire to prothis memo to the lead investigator. The lead investigator vide the CCHS data to the RCMP appeared to trouble Statistics Canada more than the alleged data breach that did recall receiving a copy of the memo. the ministry was investigating. On November 16, 2012, there was a conference call respecting the CCHS data issue with the HSS lawyer, the HSS Supervising Solicitor, the privacy lawyer, the lead investigator and other members of the investigation team. The notes of the HSS Supervising Solicitor indicate that some of the discussion related to the view that the province needed to keep the CCHS data for the potential criminal investigation, and questions of how to deal with Statistics Canada’s position that the data should be returned to them. Her notes indicated that the lead investigator said that the ministry could return the original CCHS data to Statistics Canada, but the linked CCHS data was another matter. On December 3, 2012, an RCMP member called the lead investigator and made arrangements to pick up the disks containing the CCHS data from the Ministry of Health the following week. On December 10, 2012, the RCMP member attended at the ministry office, met with the lead investigator, and took possession of the CCHS data and some other information contained on the disks retrieved from the fired employee’s desk. At this time, the RCMP did not have judicial authorization to compel the ministry to provide it with the CCHS data. The ministry provided it voluntarily. On December 17, 2012, there was a teleconference with an RCMP member, two HSS lawyers, and the lead The RCMP member’s notes indicate that on December 17, 2012, the RCMP completed a Form 5.2 (Report to a Justice) under s. 489.1 of the Criminal Code allowing it to continue to hold the disks. On September 4, 2013 the RCMP returned the CCHS disks to the lead investigator. 11.6.2  Analysis: Providing Information to the RCMP Despite both Statistics Canada’s position and the advice of LSB lawyers, the lead investigator made arrangements on behalf of the Ministry of Health to provide the CCHS data, along with other information, to the RCMP because in her view it was “evidence of the fact that the person had possession of, and was transferring data (evidence of the offence).” However, no one we spoke with, including the lead investigator, was able to explain why it was important for the RCMP to have any of the information, including the CCHS data, when they had indicated they would not make a decision whether to investigate the matter until they had received a final report from the investigation team. We spoke with a member of the executive at the Ministry of Health who said that she understood from the lead investigator that the RCMP had an active investigation and wanted the CCHS data for that reason. She said she CHAPTER 11 later came to understand that the ministry was “burying them with data” the RCMP did not require and that the RCMP was never investigating the events at the ministry. The information that the Ministry of Health provided to the RCMP, when they were under no legal compulsion to do so, contained the personal health information of thousands of Canadians and was provided over the objections of the federal agency that gathers the information. The provision of the CCHS data to the RCMP raises a number of issues including whether, in doing so, the ministry breached its agreement with Statistics Canada. That is a matter for Statistics Canada to consider. Findings F 32 The grievances were settled on the basis of information provided by the province to the BCGEU before the government recognized that there were significant flaws in its own investigative process. F 33 It was improper and contrary to legal advice for the Ministry of Health to proactively provide Canadian Community Health Survey data to the RCMP. It was also unnecessary because the RCMP had not decided whether to conduct an investigation at that time. 237 238 MISFIRE: THE 20l2 MINISTRY OF HEALTH EMPLUYMENT TERMINATIUNS AND RELATED MATTERS CHAPTER 12 12.0 / MINISTRY OF HEALTH INVESTIGATION INTO CONTRACTORS AND EXTERNAL RESEARCHERS 12.1 Introduction The Ministry of Health investigation team, at the direction of Deputy Minister Graham Whitmarsh, divided its investigation into two phases. In “Phase 1,” the investigation focused on Ministry of Health employees resulting in the termination decisions in September and October 2012, and the later disciplinary measures taken against additional employees. In what was described as “Phase 2,” the ministry intended to investigate a wide variety of contractors and researchers with respect to their access to and use of ministry data. For some contractors and researchers, the ministry developed a series of other data-related concerns that it believed needed to be investigated. Certain contract terminations occurred during Phase 1, such as that of Dr. W. Warburton. The investigation considered the contractors and researchers investigation in Phase 2, and as such we have decided to discuss these decisions together. It is this second phase of the investigation that we consider in the following pages. 239 240 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS View main timeline Jun 11, 2012 Data access suspended for Dr. William Warburton. Jul 16, 2012 Dr. W. Warburton’s contract with Ministry of Health terminated. Sep 19, 2012 Ministry of Health suspends contract with Quantum Analytics. Jul 26, 2012 Aug 22, 2012 Lead investigator meets with University of Victoria representative and discusses data access suspensions. Lead investigator meets with University of British Columbia representative. Sep 19, 2012 Sep 13, 2012 Ministry of Health directs universities to suspend all work on Therapeutics Initiative and Alzheimer’s Drug Therapy Initiative contracts. Ministry of Health suspends contract with Blue Thorn Research and Analysis Group. Nov 6, 2012 Feb 21, 2013 Aug to Sep 2013 Ministry of Health terminates contract with Resonate Solutions Inc. Ministry of Health terminates the contract with Quantum Analytics. Ministry of Health begins process to reinstate data access privileges to individuals whose data had been suspended. Aug 31, 2012 Education for Quality Improvement in Patient Care contract expires. The contractors and researchers who were investigated University of Victoria (UVic). These contracts remained as part of “Phase 2”, about 30 in all, came under investi- suspended for many months without any clear indication gation primarily because they were named in the initial from the ministry what its concerns were or when the complaint to the Office of the Auditor General or because contracts and related work might be restarted. In addition, they had professional connection to individuals named one contract, with Quantum Analytics, was suspended in the complaint. Once the investigation had identified because the contractor was, through no fault of his potential subjects, it took steps to determine their data own, involved in one of the privacy breaches described authorization and their access to and use of data, although in Chapter 10. those steps were incomplete. When it was unable to lo- Ms. Lindsay Kislock, as the Assistant Deputy Minister cate all of the agreements that it expected to find, the responsible for data access, appears to have been the investigation team did not contact the contractors and unofficial executive lead of Phase 2. The information that researchers to try to track down appropriate agreements the lead investigator was providing to ministry executives or understand their data access and use. Instead, based drove much of the decision making about which contracts on mere suspicion, the Ministry of Health decided to sus- should be suspended or terminated and which individuals pend data access for most of the 30 contractors, impeding should have their data access suspended. No Public Sertheir ability to work – including their ability to complete vice Agency employees were involved in this phase of deliverables under contract to the ministry. the investigation. In addition to suspending data access, the ministry de- Phase 2 of the investigation happened simultaneously cided to suspend, cancel or not renew seven contracts with the continuing investigation of ministry employin various divisions of the ministry, including three sets ees, which included dealing with the data breaches that of contracts between the Pharmaceutical Services Div- were reported to the Office of the Information and Privacy ision and the University of British Columbia (UBC) and the CHAPTER 12 Commissioner and supporting the litigation and pending arbitrations. Weekly update summaries described some of the tasks being performed by the investigation team in Phase 2, which included summarizing data access, searching and reviewing relevant emails, and reviewing and summarizing computer drives. Provide legal advice and other legal services as required including gathering evidence, preparation and conduct of interviews along with government investigators of various persons and companies who may have breached contractual obligations and legally required privacy protection requirements. One practical problem was that the more the team investigated without bringing issues to resolution, the more the In August and September 2013, the ministry interviewed work continued to grow. One of the investigators noted in three of the contractors whose data access had been June 2013, “The more emails we look for, the more things suspended. The two lawyers who had been retained in we find that need to be put in context with data access February 2013 attended and took notes but did not conduct and potential issues.” Meanwhile, the contractors and the interviews. researchers had their data access suspended for over a At the same time, the ministry also sent letters to some year. The majority of those individuals were never inter- of the individuals whose data had been suspended, reviewed by the ministry. questing signed declarations with respect to data. At In February 2013, on the recommendation of the Legal the conclusion of the interviews and after receiving the Services Branch, Ms. Kislock determined that the ministry signed declarations, Ms. Kislock reinstated their data acshould retain outside counsel to assist with the second cess. However, because Phase 2 of the investigation was phase of the investigation, which was focused on con- never really completed as envisioned, some individuals we tractors and external researchers. A lawyer in the Health spoke with in the ministry continue to believe that there and Social Services (HSS) group of the branch explained may have been inappropriate use of ministry data. that this recommendation was based on discussions that In this chapter of the report we describe the steps taken he had with the HSS Supervising Solicitor about concerns in Phase 2 of the investigation with respect to the conduct they shared regarding the conduct of past interviews by of certain contractors and researchers. the Ministry of Health investigation team. He said that they thought the past interviews were not “very fair” and In this chapter in particular, we describe a number of more akin to “surprise interrogations” and that it would longstanding contractual arrangements that had been be a good idea to have a third party conduct further approved and supported by executives in the ministry over many years. It appears to us that the investigators viewed interviews. these contractual arrangements as somehow improper. The HSS lawyer said that he understood that the purpose However, the investigators did not seek information from of retaining outside counsel was to have the investiga- those individuals who had created and structured those tion carried out in an objective manner. He indicated that agreements, nor did they properly assess the documentary he had identified a concern that the previous phase of records. In our investigation, we did speak with those the investigation suffered to a degree from some of the individuals and did review the documentary records. We hallmarks of tunnel vision, including holding investigative saw no evidence that any of the contractual arrangements preconceptions, ignoring exculpatory evidence, and in- investigated were anything other than consistent with terpreting evidence in a manner that suggested a lack of government policy. While it was open to the ministry to objectivity. take a different policy approach to health research, doing Accordingly, outside lawyers were retained to assist gov- so through an investigation that singled out individuals ernment investigators with any further investigative steps. was improper. The services they were to provide under their February 13, Ms. Kislock, the lead investigator and others described 2013, retainer were as follows: that they never completed Phase 2 of the investigation because their time and resources were otherwise occupied 241 242 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS with the ministry’s continuing investigation of employ- been authorized prior to the use of Information Sharing ees and supporting any related litigation and arbitrations. Agreements (ISAs). Despite this, she and the team failed When the new Deputy Minister of Health, Stephen Brown, to take this knowledge under consideration. They did not took over in June 2013, he directed the investigation to take reasonable steps necessary to inform themselves wind down. That included bringing Phase 2 to an end. about the contracts and agreements authorizing data access. Not speaking to the affected individuals was a significant failing. 12.2  Contractor Data Suspensions About 30 Ministry of Health contractors and researchers were included in Phase 2 of the ministry’s investigation. However, before beginning to investigate these individuals in earnest, the ministry suspended their data access. This was done out of an abundance of caution and without any supporting evidence. As described in Chapter 7, the first external people to have their data suspended were Dr. Colin Dormuth on June 7, 2012, and Dr. William Warburton on June 11, 2012. 12.2.1  Dr. Colin Dormuth and TI, ADTI and EQIP Data Suspensions Dr. Dormuth and two of his colleagues (who we refer to here as Contractors 1 and 2 because they have not been previously publicly identified) were the focus of the ministry in Phase 2 of the investigation. With the exception of the Blue Thorn contractors, the contractors who lost data access during this time were associated with the TI, ADTI and EQIP contracts. The next several contractors to have their data access sus- As the lead investigator told us: pended were those associated with Dr. Dormuth, through Most of the work that we did … was relative their work on the Therapeutics Initiative (TI, with the Pharto the relationship; right? That was our focus. macoEpidemiology working group [PEG]), the Alzheimer’s We were never asked to do broader, does every Drug Therapy Initiative (ADTI) and Education for Quality person in government, in contract have approImprovement in Patient Care (EQIP) contracts.1 Their acpriate data access; right? We always scoped it cess was suspended on July 17, 2012, without any notito the relationship math in terms of the initial fication. One more contractor also associated with PEG identification. and EQIP had his data access suspended on July 30, 2012, Because the ministry viewed Dr. Dormuth and his two again without notification. Furthermore, the employees of colleagues as a trio and because they appeared to be the contractors never received any direct notification from central to the ministry’s Phase 2 investigation, we disthe ministry of the decision to suspend their data access cuss them here in detail. We do not discuss in detail the or reasons for that decision. concerns about the other TI, ADTI and EQIP contractors Other data suspensions for contractors followed when the largely because the concerns were themselves not deministry suspended data access for Blue Thorn associates tailed. The investigation team was generally concerned on September 13, 2012. While the ministry sent notifica- that data provided under the three contracts was being tion of the suspensions to the lead associate, it did not used inappropriately or without authorization. The investicontact individual associates. The Blue Thorn contract gation team had no evidence of this at the time of the data and data suspensions are discussed further in section suspensions and did not gather evidence of this through12.4.3 below. out the year or more of the Phase 2 investigation. There was also no allegation or evidence of a precise “incident” The lead investigator was aware of the multiple deficiencies in the Ministry of Health’s data access systems, involving a data breach. some of which she had described in completing the work In 2012, Dr. Dormuth was a member of the Faculty of on the Timely Access review for Ms. Kislock. The lead Medicine at UBC, working at the TI. He was the head investigator also was aware that data access processes researcher of PharmacoEpidemiology working group (PEG) had changed over time and that some data access had 1 See Chapter 4 for a description of each of these programs. CHAPTER 12 within that initiative, responsible for analyzing “linked administrative data in British Columbia from PharmaNet, Medical Service Plan, and hospitals to answer important questions unaddressed in clinical trials.” Dr. Dormuth was a highly respected researcher who had a longstanding relationship with the Ministry of Health. had access to what and where for some of these contracts. Again, that took time to find as we moved forward, but based on the time that we were given for a security provision our recommendation was that we revoke and reissue to get a good understanding of who has access to what. Dr. Dormuth first came under suspicion by the ministry’s We interviewed both Ms. Kislock and Ms. Walman about investigation team because he was one of the five indi- the decisions to suspend data access to Dr. Dormuth and viduals named in the complaint to the Office of the Auditor his colleagues. Neither was able to articulate a clear General. He was named because he was involved in a rationale for this decision. Prior to the suspensions, there variety of ministry contracts for health research. He was was no specific allegation that the contractors had misthe lead researcher for PEG’s deliverables under the TI’s used data. It is clear that the data suspension decisions long-term service contract with the ministry. He was a were not based on an assessment of the data access in subcontractor for EQIP and in one of five ADTI studies. question, the security measures in place to protect that He was also selected as the British Columbia represent- data, or the value of the work being done under the relative for the Canadian Network for Observational Drug evant contracts. As we described in Chapter 7, Ms. Kislock, Effect Studies (CNODES), which is a federal collaborating who took responsibility for the decision to suspend data centre of the Drug Effectiveness and Safety Network. In access, explained that evidence was not necessary. addition to his contractual relationships with the ministry, I made my decision to suspend people’s data Dr. Dormuth had a long professional relationship with Dr. access on the recommendation from the invesMalcolm Maclure, who was himself under investigation. tigative team, right? We suspended access for As mentioned, Dr. Dormuth and Contractors 1 and 2 were people whose name appeared in the course of most often viewed by the investigation team as a group. the investigation. My general approach was to The allegations against one were levelled against all three. suspend access and then figure it out. To limit the It appears that the reason for grouping these three togethrisk, I suspended access, knowing that an investier was the fact that they, at one time, were all partners of gative process would go through and determine a consulting firm called PFIA, through which they provided whether people should have access. their contracted services in data analysis. PFIA was the … main subcontractor to the EQIP contract. That was my overriding principle in making deciAs discussed in Chapter 7, Assistant Deputy Minister Barsions. Suspending data, people – we suspended bara Walman suspended Dr. Dormuth’s data access on data for people whether or not – it wasn’t – they June 7, 2012, by way of letter. Assistant Deputy Minister weren’t guilty of anything. If there was a concern, Lindsay Kislock then decided to suspend data access for the data was suspended. the other two members of PFIA: for Contractor 1 on July 17 and Contractor 2 on July 30. As a result of these suspen- Other than Dr. Dormuth, none of the individuals associated sions, data logins for PEG (which included access for the with the TI, ADTI and EQIP contracts were notified of their Drug Safety and Effectiveness Network [DSEN] and ADTI data suspensions or given reasons. The lead investigator projects) and for EQIP were affected. Other contractors expected UBC would notify the contractors directly on with data access for those projects also lost their access behalf of the ministry. The lead investigator communiin July. The lead investigator made recommendations to cated this to UBC: Hi [UBC employee] … when we spoke, we disthe Assistant Deputy Ministers for data suspensions on cussed the suspension of data while we continue the following basis: the review and that UBC through your office would … because we couldn’t find the appropriate trail be advising the researchers in PEG and related for all the data access, we couldn’t identify who 243 244 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS areas who are affected. I thought you were going to discuss with Colin for him to advise his team. It appears from the note below that some are not notified. Could you let me know status of notification to Colin or his team?  to complete the final deliverables.” The Executive Director responded, copying Ms. Walman, telling the contractor, “with regards to your question about data access being shut down, all that I know is that the review of PSD contracts and access continues.” After the ministry notified him that his data access was Members of the investigation team and Ms. Kislock exsuspended, Dr. Dormuth immediately retained legal coun- plained that Phase 2 was never completed, meaning they sel, who wrote to Ms. Walman on June 14 and 15, 2012, were not able to determine whether there was any wrongrequesting information about the complaint referenced in doing. The ministry kept these individuals’ data suspended the data suspension letter. The letter stated that once Dr. for over a year without taking any real steps to determine Dormuth’s legal counsel received that information, they whether there was any merit to the concerns that precipiwould advise of his availability to meet with the ministry. tated the suspensions. The ministry engaged both the HSS and privacy lawyers Although the ministry did not interview Dr. Dormuth or to respond to this and other letters. Contractors 1 and 2 until the summer of 2013, there were The HSS lawyer responded to Dr. Dormuth’s counsel on some written communications between the three and the June 21, declining to engage with Dr. Dormuth “as that is ministry. All three received data demand letters from Ms. the party with whom the ministry has contracted in regard Kislock on November 5 and 6, 2012 (as described in Chapto this matter, the ministry has indicated to me that it will ter 10). be dealing directly with the University of British Columbia.” The letters themselves caused significant alarm, as all Contractor 1 learned that the ministry had suspended his data access when he tried to log in on July 18, 2012. He immediately contacted the ministry and spent several weeks communicating with data access staff to try to determine what had happened, why his access had been cancelled and whether there were problems with their contracts or deliverables. three contractors depended on accessing ministry data to perform their work. The ministry’s rationale for sending the letters was that they were necessary to protect the personal information of British Columbians and to demonstrate to the Office of the Information and Privacy Commissioner (OIPC) that they were taking the appropriate steps. However, Dr. Dormuth and his colleagues had no He also contacted the Executive Director of the ministry’s involvement in the three incidents reported to the OIPC, Pharmaceutical Services Division (PSD) who managed the nor were their contracts related to the incidents. The minaffected contracts to explain that the data suspension istry cast its net too wide when it sent the letters. Given would make the contractors unable to meet their deliver- the ministry’s lack of evidence of inappropriate disclosure ables. The contractor asked a series of questions about or misuse of personally identifiable data by any of these the data suspension and what it meant for the project. three individuals, it was unreasonable to send them such He received no response, in part because the Executive letters. Director had no information about the concerns that pre- Contractor 2 responded to his data demand letter on Novcipitated the data suspensions, and Ms. Walman did not ember 7, 2012, providing the ministry with assurances with respect to ministry data storage and use, including stating clarify the rationale for the decision with her staff. The contractor followed up again on August 3, 2012, that he did not store any personally identifiable data outattaching to his email a quarterly report showing that side ministry databases and that all documents relating EQIP was on target to meet its deliverables by August to his Healthideas contract were securely destroyed from 31, 2012. In his email, the contractor notified the ministry his computer. that “as of July 17, 2012 the Ministry of Health suspended EQIP access to Ministry of Health administrative claims data … as a result, the Implementation Team is unable Dr. Dormuth (through his legal counsel) and Contractor 1 responded to the demand letters on November 14, 2012, stating that the ministry’s assertion that they were in CHAPTER 12 possession or control of ministry property was too vague. the other individuals associated with the TI, ADTI and Their letters provided a variety of assurances, including EQIP contracts, had improperly disclosed or misused data. confirming that they did not have any data or records that Therefore, the data suspensions were not justified. The contained third-party information in their possession or ministry did not provide reasons for any of these data control. They confirmed that no third-party information suspensions. This was unfair as it did not allow the conexisted on any of their computers or devices. tractors to understand why the decisions were made or Contractor 1’s letter also explained that since his data give them information on which to refute or appeal the access was disabled, “I have been effectively terminated decisions. from all consulting work with the Ministry, with no explan- In the circumstances, it was inadequate to only notify the ation. This has caused me financial loss and irreversibly universities that the contracts were suspended and not tarnished my reputation.” The letter concluded by request- inform the individuals working on those agreements that ing information related to the discontinuation of his ac- their data was suspended. The individuals who had their cess for PEG, EQIP and Healthideas and to his removal as data access suspended were not able to access ministry a Resonate Solutions subcontractor on the Healthideas data during the period of suspensions even though they contract (discussed in section 12.4.1, below). had been granted access under other contracts. That is to say, the individuals who were party to these contracts Though the ministry’s lawyers worked on various draft responses to Dr. Dormuth’s letter, it does not appear that were under review and the ministry’s decision to suspend the letter was ever sent. We found no evidence of the their data access impacted their interests. ministry responding to any of the contractor’s letters. The overarching allegation against all three of the conDespite the assurances from Dr. Dormuth and his col- tractors was that they may have used data for unauthorleagues, the ministry maintained its data suspensions for ized purposes. The investigators maintained this suspicion because they did not personally understand or know what 10 more months. was happening with the ministry’s data 12.2.1.1  Analysis: Dr. Colin Dormuth and TI, ADTI and The investigators had a duty to inform themselves about EQIP Data Suspensions the data access that was causing them concern. Absent After reviewing the information that the ministry had any evidence of inappropriate use or disclosure of that available to it, and interviewing members of the invesdata, the ministry cannot reasonably suspend someone’s tigation team and the contractors, we have concluded data access based simply on the risk that data could theorthat the ministry had no evidence that Dr. Dormuth or his etically be misused in the future. This risk exists any time colleagues misconducted themselves or misused ministry data is shared with anyone. However, the risk in these data. The ministry had a mere suspicion that Dr. Dormuth cases was mitigated by the fact that each of the three and his colleagues might be misusing data based on the contractors had a long working relationship with the Minfact that they had authorized access to a significant istry of Health as employees, contractors and researchers amount of data. The investigators viewed this as a risk, and were well respected in their fields. which was amplified – in their view – by the fact that the investigation team struggled to locate the agreements The lead investigator was informed that Dr. Dormuth authorising access that the investigators expected to be and the members of PEG accessed ministry data through unique logins that were partially auditable. Even more in place. important to assessing the seriousness of the risk was the As we described in chapter 7, there may be times when fact that the data access for all of their research-related the ministry must act quickly to suspend data access bework (TI, DSEN, ADTI and EQIP) was de-identified (meanfore it has time to conduct an investigation into a suspecting it included no names, Personal Health Numbers [PHNs] ed data breach. However, the ministry must have some or addresses, and only partial birthdates and postal codes) evidentiary basis for its actions. In this case, the ministry and therefore could not be connected to any particular had no evidence that Dr. Dormuth, his colleagues, and individual. Such information was readily available in the 245 246 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS Information Management and Knowledge Services Branch of the ministry. When we spoke to Dr. Dormuth, he described his access through his PEG and EQIP views in Healthideas as follows: … those were the first real efforts of the ministry of putting in a real good security solution of rolebased access and so the kind of work that I did, and we did, did not require knowing someone’s real PHN. I just needed to be able to link the same patient to the same patient in two different data sets. I didn’t need to know who that person was. So we had role-based security since … 2006 or ’05, something like that. And from that point forward everything would have been done with de-identified data. Virtually every paper I was on as lead after 2004 would have all been done with … de-identified information. contracts that explained the security measures in place to protect the data in the case of EQIP, where the ministry had not finished drafting the ISA, the ministry had given explicit written direction to its staff to continue the contractors’ data access, and to the contractors to continue using the EQIP data for EQIP work all those involved on the TI/PEG, DSEN, ADTI and EQIP initiatives were contractually required to follow strict privacy and confidentiality measures It appears that the suspension decisions were made without a proper understanding of Dr. Dormuth’s and his colleagues’ data access. For example, even a year after the data suspension, it appears key individuals in the ministry did not understand that the contractors’ data views for TI/PEG, DSEN, ADTI and EQIP were de-identified views, despite being informed of this early in the investigation. Although Mr. Whitmarsh directed the team to focus on the We heard from many of the investigators about the in- employee matters until the terminations were completed, tense time pressure and limited resources in conducting by the fall of 2012 the terminations had occurred and the investigation throughout the summer of 2012 and how the investigators had begun to turn their attention to the difficult it was to find all of the information that they need- universities. At this time, they could have contacted the ed. However, resource pressure is not sufficient justifica- contractors and sought further details, such as copies of tion for suspending data access without evidence of any the contracts or information sharing agreements (ISAs). wrongdoing and keeping it suspended for over one year. Had they approached their investigation in an organized If investigatory resources were the issue that problem and thorough manner, there is no valid reason why the needed to be addressed so that data suspensions could investigators responsible for looking at the data issues be lifted or confirmed in a reasonable time frame. On could not have determined, relatively quickly, whether the the other hand, if the delay was arising due to lack of data access was authorized and the contractors complying knowledge of the details underlying the data access held with their requirements to maintain the data securely and by these contractors that needed to be addressed. The confidentially. ministry had clear documentation in its files that: Beyond the general misapprehension that Dr. Dormuth the contractors were authorized to have access to administrative health data; this authorization had come from the Director of Data Access, Research and Stewardship and the PharmaNet Stewardship Committee the ministry had provided each individual on the subcontract with their own unique logins and approved “views” of the database that were specific to their work the contracts had Privacy Impact Assessments and/ or information sharing agreements (ISAs) for their and Contractors 1 and 2 were using data inappropriately or without authorization, the investigation team also speculated that they may have been involved in a privacy breach involving a researcher from Harvard University. As part of its work, the team reviewed emails going back to the early 2000s when Dr. Dormuth and Contractor 1 were employees at the Ministry of Health. Contractor 2 was a contractor to the ministry in a senior analyst position at the time. The investigation team discovered emails involving Dr. Dormuth, Contractors 1 and 2 and a researcher at Harvard and these raised concerns. The CHAPTER 12 team believed the contractors might have provided data On September 18, 2012, the lead investigator flagged an to the researcher without authorization. Also of concern email about EQIP that was sent by Dr. R. Warburton to a was that the researcher was in the United States, and in staff member. It said, in reference to the paragraph below: 2012 the Freedom of Information and Protection of Privacy “We need to ensure this is accurate after the move. I asAct (FOIPPA) prohibited storing personally identifiable data sume the bit about the server closet location will probably outside Canada. In our view this concern was unfounded. need to change. Can you update for me?”: In the early 2000s, the Ministry of Health entered into an agreement with a Harvard researcher to conduct an evaluation of the ministry’s newly formed Fair PharmaCare program. The Harvard researcher was to receive PharmaNet data from the ministry for this research. The rules under FOIPPA for storage of personal information outside Canada did not exist at the time. Dr. Dormuth and Contractors 1 and 2 were involved in extracting and providing the data to the Harvard researcher, and were directed to do that work in their ministry roles. There was evidence available to the investigation team demonstrating that people from senior levels of the ministry were involved in organizing, approving and facilitating the data transfer. Moreover, there is no evidence that any data was transferred after the FOIPPA provisions changed. Physical Security No detailed or sensitive data will be held or accessed outside Ministry of Health Services’ servers. The only data with non-coded personal identifiers will be physicians’ contact information and participation status, which are stored on the EQIP password-protected database server in the EQIP Implementation Team’s office … The premises are protected by a Price’s Alarm system, the office is locked with keys and an entry password code, and individual offices are locked with keys. The server is housed within a locked closet within the office, and infrequent visits into the closet – which also houses some long-term storage items such as Home Blood Pressure Monitors (physician participation incentives purchased by EQIP) – are recorded in an access log.2 This example demonstrates two common problems in relation to the investigative approach to the contractors. First, those on the investigation team responsible for look- In forwarding this email to another investigator, the lead ing into the data issues did not interview the individuals investigator remarked, “This explains where some of the about the allegations against them and therefore missed data used by Colin and Malcolm may be stored.” information vital to understanding the concerns. Second, the team did not consider the changing context, including Through the remainder of the investigation, the investithat legislation, policies and practices had evolved over gators responsible for looking into the data issue took no practical steps to determine whether such a server existed. the years. Instead, the team spent considerable effort searching for Another concern of the investigation team, and especially additional email evidence that might confirm the existof the lead investigator, was that Dr. Dormuth and some ence of such a server, including seeking legal advice and of his colleagues had been copying data to create their drafting demand letters for return of any ministry data own database and were storing it on a server. The inves- collected, accessed or stored on an EQIP server. tigation team had no evidence that this was happening. Rather, they had a concern that Dr. Dormuth was doing No one followed up to ask specifically about the server something unauthorized with data because he had mul- until August 2013, when the contractor explained that tiple data accesses and a professional relationship with the “server” was in fact only a laptop that was storing a Dr. Maclure, who was also under investigation. The inves- mailing list of physicians who had consented to participate tigators had an unsupported theory that data was being in EQIP. When we interviewed an expert in the ministry’s sold and possibly leaving the country. They believed they administrative databases, he explained that it would be an had found proof of this theory when they discovered a insurmountable task to create a database such as the one that the investigators had envisioned, because of its size: series of emails referring to an EQIP “server.” 2 This paragraph is from an information sharing agreement that Dr. R. Warburton was working on at the time. 247 248 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS It would not be a simple matter to, you know – so just guessing. PharmaNet would probably have in the neighbourhood of 50 million rows added to it every year; MSP would probably be in the neighbourhood of 80 million rows every year; hospitals is a smaller data set, but this would not be a trivial task to do this. Officer. In these interviews, the ministry received clear responses to several of its concerns, which could have been put to rest over a year prior had the investigators been allowed to interview them. We asked Ms. Kislock about her interview with Dr. Dormuth. She said: … we seemed not to agree on one point but – but at the end of the day, there wasn’t enough to – raised in the interviews to continue the data suspensions. So, you know, we – I believe that each one of them signed some statement saying they didn’t have data in their possession and then that was the end of it. Certain members of the investigation team developed other data-related concerns over time. The team compiled the concerns in spreadsheets and tables and added to them as they continued to collect emails during their email review. The concerns included sharing login credentials, overusing VPN access and logging in from various When we asked why the meeting could not have occurred terminals. Listing the existence of concerns was not in a year earlier, she told us: itself a problem. However, rather than taking straight… in hindsight I can think of no reason that it forward steps to determine whether there was any merit couldn’t have occurred. Right? Like, it’s easy for to the concerns, the team just kept adding items to their us to say now. Because we – we, and we were, list. The result was a list of unsubstantiated concerns that right? Focussing on work group one, then movwere never truly investigated. Nevertheless, by virtue of a ing to work group two. Could you have parallel matter being identified as a concern, it began to be viewed tracked that and got a different group working by some as having merit. on group two and had – like, yeah. In retrospect. Another set of concerns raised by members of the invesLike, it always seemed like we were going to get tigation team related to publications authored by Dr. Dorto that and then getting to that didn’t – you know, muth and his colleagues. Dr. Dormuth had written numerthat was September and we didn’t really get to ous academic publications that relied on his legitimate use that until the spring and early summer. of the ministry’s administrative health data. The evidence we reviewed showed that these publications were com- In our interviews with Dr. Dormuth and his colleagues, pleted in accordance with all contractual requirements. they were able to provide much the same information as Most often, these requirements were that Dr. Dormuth they provided to the ministry in their interviews, as well submit a proposed publication to the ministry so that it as copies of requested contracts, data sharing agreements would have the opportunity to ensure the data was used and publication reviews. We spoke with Dr. Dormuth about his experience in the interview. He told us: appropriately in the publication. … there was numerous papers where they said By failing to audit or verify the precise nature of Dr. Doryou didn’t tell us about this paper and I was able muth’s data access, the data that had been used in the to dig up, I think, the emails for all of them that publications, and the fact that these publications had been were done by us – not Harvard – for all of them pre-approved by the ministry, the investigators considered except for the 2004 paper which was just so long Dr. Dormuth’s publication history as “proof” that he – and ago that I don’t have the emails that I would have by extension the TI – had misused their data access con– they would have – I mean, which they for sure trary to their obligations to the ministry. This allegation would have known about. So their own data acwas not borne out by the evidence. cess services branch that got these emails with In August and September 2013, Dr. Dormuth and Contractthe papers before publication, they weren’t even ors 1 and 2 were interviewed by Ms. Kislock and Manjit [able] to look up their data access services acSidhu, the Ministry of Health’s Assistant Deputy Minister count to see if these were sent in. And hopefully of Finance and Corporate Services and Executive Financial CHAPTER 12 the tone of those email questions, hopefully you sensed, well, these people aren’t trying to understand everything, there’s an element of what can we throw at this guy to trip him up. For example, you didn’t submit this paper to us, you broke the rules, or whatever. In summary, given our assessment of the ministry’s: lack of evidence failure to conduct a thorough and thoughtful investigation in a timely way In her March 2012 complaint to the Auditor General, the complainant made allegations about the Therapeutics Initiative (TI). During the ministry’s initial review of the complaint in April and May 2012, the complainant brought forward additional allegations related to data access and use in relation to the Alzheimer’s Drug Therapy Initiative (ADTI), TI and a third program, Education for Quality Improvement in Patient Care (EQIP). Each of these programs was carried out through longstanding contracts between the Ministry of Health and UBC and UVic. The first action the ministry took with respect to these con failure to afford Dr. Dormuth and his colleagues an cerns was to suspend data access for particular individuals opportunity to know the case against them and to involved in the contracts (as described in Chapter 7 and respond to the allegations until about a year after above). Later in the investigation, the ministry suspended the suspension or cancelled the contracts. Because these contracts were with universities, much of the communication occurred we have concluded that the length of the data suspensions was unreasonable and unfair to Dr. Dormuth and between the ministry and university representatives. In Contractors 1 and 2. It also was unfair to a number of the following section, we describe those communications the contractors working on the TI, DSEN, ADTI and EQIP as the universities tried to obtain information about the projects. The data suspensions had a negative effect on nature of the allegations and investigation and to detersome of the individuals who lost their livelihoods for a mine an appropriate response. year or longer. It caused personal and professional stress 12.3.1  Ministry of Health’s Interactions with and tarnished reputations. One of the PEG contractors the Universities described the loss of productivity in the TI offices as affected staff spent months trying to figure out what they In July 2012, the investigation began looking into how the TI and other contracts with the universities could be dealt had been accused of doing. with during the investigation. The data suspensions also had a negative effect on some Ministry of Health research projects. More details of the 12.3.1.1  Providing the Universities with Information impacts of the suspensions on individuals and public about the Concerns health research are discussed in Chapter 17. It is unclear from the evidence when the ministry first gave the universities notice that its investigation included the universities’ conduct under agreements between the 12.3  Suspension and Termination universities and the ministry. The universities may have of Pharmaceutical Services been notified as early as July 3, 2012 but we were not able to confirm this. It appears the ministry notified only Division Contracts with certain individuals who were subject to the review and not Universities the institutions themselves. Further, over the course of the review, the universities were never provided with written As described above, Phase 2 of the Ministry of Health’s notice of specific allegations against the universities and investigation also led it to focus on specific contracts, re- were not provided sufficient particulars of the allegations sulting in suspensions or terminations. In this section of against specific individuals who were their employees or the report we focus on contracts between PSD and the faculty members. This is problematic in light of the HSS University of British Columbia (UBC) and the University lawyer’s position expressed to Dr. Dormuth’s counsel, of Victoria (UVic). which was that the ministry would not deal directly with 249 250 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS the individuals, but only with the universities who were parties to the agreements. On July 11, 2012, the lead investigator sent an email to the HSS lawyer asking whether the ministry could suspend, rather than cancel, its contracts with the universities pending the completion of the investigation. On July 12, the HSS lawyer replied: They could be [suspended] by way of negotiation and mutual agreement with the universities. Without agreement, it could mean it would be perceived as a breach. I would think that the senior people (VP level) at UBC and UVic would be amenable to resolving this when they understand the potential impact and might be willing to suspend things for a period of time. information about the datasets included in the data suspension, as well as a time frame for the data suspensions. She wrote, “You will understand that we are concerned about the impact on the project of any suspension of data access, including the potential for delays in the delivery on our commitments under the Min of Health agreement.” She also asked whether the lead investigator could share whether the ministry had any concerns about specific UVic processes or research personnel. UVic did not receive a written response to this request. Also on July 27, 2012 the lead investigator reported to Ms. Kislock and Ms. Walman that her discussion with UVic went well, and that “they are supportive and prepared to work with us ASAP.” Similarly, on August 22, 2012, the lead investigator wrote to the HSS lawyer indicating that she had just had a “great meeting” with UBC, and that According to the ministry’s records, certain members of UBC wanted a formal letter regarding the suspension of the investigation team met with the universities in per- contracts but had already provided the ministry with some son about the investigation in July and August 2012. We information and wanted to work with the ministry. did not locate any notes or agendas maintained by the ministry about these early meetings. As well, the lead On September 10, 2012, the lead investigator and another investigator communicated with representatives from the member of the investigation team met with UVic. The lead investigator showed the UVic representatives the universities by phone. Relationship Web. When she spoke with us, the UVic In an email dated July 23, 2012, Ms. Walman described representative said the Relationship Web was difficult the outcome of the early meetings with UBC and UVic. to interpret because it showed “a complexity of the She wrote, “we provided them with some background to interrelationships that weren’t set up by any university explain why we suspended data access while investiga- process” and the investigators had a “different way of tion is underway. [The lead investigator] will meet with looking at relationships” than UVic did. The representative them again shortly to review the current contracts and understood that the ministry’s concerns were about Dr. data access to ensure we are all on the same page and Maclure’s familial connections to both Drs. Warburton the correct paperwork is in place to support the work.” and the fact that Dr. R. Warburton held a one-half-time On July 26, 2012, the lead investigator and a UVic repre- position with the ministry. sentative had a discussion about the ministry’s investiga- At this meeting, UVic learned that the ministry was broadtion. The UVic representative told us that at that meeting ly concerned about unauthorized data transfers, primarily the lead investigator explained that the ministry had sus- in relation to Mr. Roderick MacIsaac, but as discussed in pended data access for three people associated with UVic Chapter 10, the ministry did not provide UVic with suffiand that the ministry was conducting an investigation cient information to be able to follow up. triggered by an anonymous complaint to the Office of the The UVic representative told us that following the SepAuditor General. tember 10, 2012 meeting, UVic was concerned that the The UVic representative followed up on the discussion ministry’s investigation team did not have a clear underwith an email to the lead investigator on the day after standing of Dr. Maclure’s relationship with UVic (and his the meeting. In the email, the UVic representative indi- other cross-appointments) and the relationships amongst cated UVic’s willingness to assist in the ministry’s “ex- the researchers. The UVic representative told us that she tensive internal review.” The UVic representative sought was concerned that the ministry did not appear interested CHAPTER 12 in UVic’s perspective on the matter. At the meeting, UVic requested that the ministry describe in writing the scope of the review and the information that the ministry was seeking so that UVic could prepare a response. Not having received this information, on September 16, 2012, UVic again asked the ministry when it could expect to receive more detailed information about the ministry’s concerns. By this time, UVic was fielding increasing questions from its own researchers which it was unable to answer. The UVic representative told us that they gleaned more information from reading a letter to the editor written by the Minister of Health than they received from the ministry directly. The letter to UBC also said that the TI, ADTI and EQIP contracts were suspended. The UVic letter also said that the ADTI contract was suspended. The letters to both universities included the following language: We note that it was open to UBC and UVic to take the position that the ministry was in breach of its contractual obligations when the ministry indicated its intention to suspend the contracts. Instead, however, both universities agreed to cooperate with the ministry and cease work under the agreements while the ministry conducted its investigation. 12.3.1.3  Analysis: Initial Communication with the Universities The process that the ministry followed in its initial communications with the universities was unreasonable. There is a dearth of documents about these early discussions with the universities. As noted above, we could not locate any meeting notes or written correspondence relating to these discussions. The absence of clear written information was one of UVic’s primary complaints in relation to the challenges that it had in determining the UBC also lacked particulars about the nature of the nature of the allegations against it or its employees and ministry’s investigation. One representative from UBC in responding to the ministry. The absence of documenunderstood, based on the meeting with the investigation tary evidence also created challenges for our office’s inteam, that the investigator’s “primary concern” was propvestigation in terms of being able to establish the facts er access to and use of ministry data with “secondary relating to the communications between the universities issues related to conflict of interest and the appropriate and the ministry in the summer of 2012. What is clear is processes for subcontracting.” that the ministry did not communicate adequately with the 12.3.1.2  Contract Suspensions universities regarding the nature of the allegations, the scope of the investigation or what precisely the ministry On September 19, 2012, the universities received their first formal written communication from the ministry with was seeking in the way of information. respect to the investigation. The letters, based on draft The ministry did not provide the universities with a timeletters prepared by the HSS lawyer in August, were sent frame or specific reasons for the contract suspensions. from Ms. Walman to UVic and UBC. The contracts in question had no provisions for suspension. ƒƒThe ministry instructs you to suspend work on the contracts pending the results of the investigation into them ƒƒ Until the investigation is resolved, no contracts will be renewed and no work is to continue on them ƒƒThe ministry is aware that the contracts may not be completed and does not expect the work product specified in the agreements to be completed at this time ƒƒThe ministry appreciates the universities’ cooperation with its review It was not reasonable for the ministry to decline to provide information in writing to the universities which set out the nature of its concerns, the information it was seeking, and the contractual provisions on which it relied on in seeking such information. Further, it was not reasonable for the ministry to not provide direct notice to the universities that it had suspended the university contractors’ data access, especially once it took the position that it would not deal with the individuals but only directly with the universities as parties to the contracts. 251 252 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS The ministry’s piecemeal and informal approach to requesting information from the universities meant the universities were unclear about the nature of the allegations against them or their employees or faculty members, about the nature of the information the ministry was seeking, and about the universities’ authority to provide the information sought. This approach lacked the formality and diligence that the ministry should have exercised in conducting a large and complex investigation. those identified under contracts and research agreements We need to have access to emails and file info re data that we are aware of through emails that may be at UVIC including the CCHS breach data and servers with data from contractors and fired employees We need to have info on who works on contracts and research and are they listed on our files and have appropriate agreements signed 12.3.1.4  Further Communications with the Universities When the Office of the Comptroller General’s Investigation We need to find out how data is stored, accessed and Forensic Unit (IU) began its investigation in October and shared 2012, the Ministry of Health investigation team and the For ex employees we need to track specific info IU decided to approach the universities together, on the related to what you saw on the data access return basis that there was overlap in some areas of their invesletters sent with declarations tigations and a combined approach avoided having to ask the universities for the same information twice. However, The privacy lawyer responded as follows: each team had different authority to obtain information Has anyone discussed with UVic what their aufrom the universities. thority under FOIPPA would be for any disclosure of personal information to MoH concerning UVic The first joint meeting between UVic, the IU and the minemployees and/or other personal information not istry took place in February 2013. The IU followed up by supplied by the Ministry, assuming that you would letter dated February 22, 2013, in which the IU requested be requesting such personal information? specific financial records and policies and assistance in 3 accessing email records held by the universities. The IU The lead investigator responded, asking the privacy lawyer Director sought the lead investigator’s input on the letter to call her, and asking whether the information would “be and she contributed some suggested changes. shareable with us for the purpose of this investigation and the research contracts etc we have in place?” This was the first request that government made to UVic which identified with any degree of specificity the infor- The privacy lawyer noted that the lead investigator was mation it was seeking. A nine-month period had passed likely thinking of section 33.2 of FOIPPA which permits a between the start of the ministry’s investigation and gov- public body to disclose personal information to another ernment’s first written request for information. During that public body to assist in an investigation that is undertaken time, contracts were suspended and research under those with a view to a law enforcement proceeding. The privacy agreements had ceased. Once the IU put the information lawyer noted that there was a question as to whether that requests in writing, the universities responded to the re- provision could be relied on in the circumstances. He also quests in a timely and complete way. noted that the Office of the Comptroller General (OCG) A further meeting between UVic, the Ministry of Health may have statutory power to compel the production of and the IU was arranged for March 26, 2013. The day information that the ministry does not. He noted that UVic before the meeting, the lead investigator sent an email to would have to be satisfied that providing information to the ministry’s privacy lawyer to brief him on the purpose the ministry was consistent with the provisions of FOIPPA. of the meeting: The lead investigator asked, “The police will be getting this evidence from us for their investigation?” The privacy The meeting tomorrow is to advise that we need lawyer replied that if the police needed information for to review data access and storage at UVIC with 3 The IU’s dealings with the universities are described in greater detail in Chapter 14. CHAPTER 12 an investigation, then they should obtain it from UVic directly. We note that we did not find any evidence that the ministry ever indicated to UVic that it might provide the information that it received from UVic to the police. The lead investigator sent a further query: “Don’t we also have a [responsibility] under the investigation to collect, contain breach info etc?” The privacy lawyer replied that the ministry needed to collect “any personal information we need to ascertain the extent of any privacy breach, but whether UVic has the authority to share all of that personal information to MoH is another story. We need to be very sensitive to that issue tomorrow.” The lead investigator responded that she was “also checking re contract data sharing agreement and what authority we have to audit, review, and ask back data”; and the privacy lawyer noted that such an approach “was a good idea.” The ministry would eventually adopt that approach. The following day, on March 26, 2013, the meeting took place. In attendance were representatives of UVic, the IU, the Ministry of Health, the privacy lawyer and an HSS lawyer. The agenda for the meeting indicated that the meeting would include an explanation of the terms of reference of the IU investigation, a “discussion of OCG requirements for accessing and retrieving relevant email stores and LAN drives.” The agenda also indicated that the lead investigator for the Ministry of Health investigation would explain the terms of reference for the privacy investigation and provide “a summary of requirements for data access, data use, data storage and data disclosure” and expectations of UVic staff. Treasury Board directive authorizing such action.4 The privacy lawyer said: … what it comes down to is that we have to satisfy UVic that they have authority under FOIPPA to assist in the investigation. In that respect, the ISA’s are critical. I have advised [an official at UVic] of the relevant FOIPPA sections to consider. It is now up to them to determine if they are satisfied that they have the requisite authority, and, if they do, whether they want to assist in the investigation. On April 12, 2013, a further meeting was held with UVic. The agenda for that call included a “follow-up on Confidentiality Agreement discussion,” a review of the terms of reference for the investigation, a review of the information required from UVic, and a discussion of legislative authority. The meeting was attended by two HSS lawyers, the privacy lawyer, the lead investigator, a member of the IU investigation team, UVic’s general counsel and UVic’s Manager of Privacy, Access and Policy. The privacy lawyer’s notes of that meeting indicate that certain provisions of FOIPPA were discussed as “disclosure authorities” and that representatives of UVic indicated that the university would need to review the various relevant information sharing agreements and consider its own authority to provide information before asking questions of its researchers. The privacy lawyer’s notes also indicated that the ministry needed to identify the relevant agreements for UVic and create a protocol for the investigation – adding “MOH protocol will be smaller” than the IU protocol. At the meeting, it was agreed that a follow-up discussion On April 15, 2013, at the request of the lead investigator, a would take place about the specific information that the Ministry of Health contractor forwarded a document to the ministry and the IU were seeking and their authority to privacy lawyer which described the information request request it. The follow-up call occurred on April 9, 2013, for UVic and which purported to describe the authority for which was attended by the lead investigator, the privacy UVic to provide this information. The privacy lawyer made lawyer, members of the IU investigation team and repre- some comments on the document, primarily to clarify the specific provisions of FOIPPA relied on and to encourage sentatives of UVic. the Ministry of Health to provide further information to On April 10, 2013, the privacy lawyer consulted with a the universities as to the nature of the ministry’s concerns. finance lawyer and followed up that discussion with an email to the lead investigator. The privacy lawyer noted On April 19, 2013, the privacy lawyer forwarded the draft that the finance lawyer had advised the IU that it could document to UVic noting that it dealt with what informacompel UVic to produce records only if the IU had a tion government was seeking and its authority to obtain 4 See Chapter 14. 253 254 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS this information under FOIPPA, as well as a comment that it was a “work in progress” and input by the university would be appreciated. letters were also reviewed and revised by outside counsel. However, it appears that these letters were never sent, and this course of action was never followed. On April 22, 2013, a member of the OCG investigation team forwarded a copy of the draft Data Investigation Protocol that the team had separately had received from UVic on April 17, 2013. The IU and the lead investigator both viewed the protocol as setting unreasonable limits on the IU’s investigation. 12.3.1.5  Analysis: Further Communications with Universities It was reasonable for the ministry to put its requests in writing and to clarify the information it was seeking and the basis on which it made the requests. This approach should have been adopted much earlier. At this time, the Ministry of Health and its HSS law- Throughout the spring and summer of 2013, the ministry yer formed the view that UVic was not being suitably made requests to UVic and UBC for specific information. cooperative. The HSS lawyer gave the lead investigator The evidence that we obtained indicated that the universiadvice that the ministry should consider taking a more ag- ties cooperated with the ministry during this process and gressive approach to the matter, and eventually obtained provided information that was responsive to the ministry’s instructions from the Deputy Minister to adopt such an requests in a timely way. The UVic representative gave approach. A draft letter to UVic reflecting that approach evidence that the information UVic provided to the minwas prepared by the lawyers. istry included “a significant amount of financial informaThe HSS lawyer gave evidence that he believed that UVic tion as a result of the specific requests that we received” was “stonewalling” the Ministry of Health and he felt that and that “in the course of providing that information we there was “a lack of responsiveness” to the ministry’s reviewed it, [and] we did not identify any concerns.” legitimate questions. He said that UVic was raising issues After the ministry completed its investigation, it did not of academic freedom and “union issues,” but that in his communicate to either university whether the ministry view UVic had contractual obligations to cooperate with had actually found any issues or improprieties with unithe investigation. He said he did not have details of the versities’ data access or the contracts under review. While specific information that the ministry was seeking, and Ms. Walman wrote to the Dean of the Faculty of Medicine that before they could get into a discussion of the na- at UBC in October 2013 to explain that the ministry had ture of the information sought, the ministry first needed learned “lessons” from the contract reviews and that it to secure UVic’s cooperation, which in his view was not had taken measures “to improve data security and privacy happening. protection” it did not detail what those lessons were nor The draft letter reflecting the ministry’s more aggressive approach was sent to the external lawyer who was conducting the litigation involving the former excluded employees. He suggested that the ministry should rely on the specific audit and investigation provisions in its contract with UVic to try to obtain the information that it was seeking. The ministry agreed with that approach and its legal counsel undertook a review of the relevant contracts between the ministry and UVic, as well as UBC, in an effort to identify those institutions’ contractual obligations to provide the ministry with the information it was seeking. The review occurred in late May and throughout the first two weeks of June 2013. Further draft letters to UVic and UBC were prepared in which the ministry sought to invoke various contractual provisions to obtain information. The whether the ministry had discovered any wrongdoing. As a result, the universities were left in the dark as to whether the ministry had found any improprieties with respect to the universities’ data access or contracts under review. Later in this chapter we discuss how the Ministry of Health handled the three specific contracts with the universities: those related to the Therapeutics Initiative, the Alzheimer’s Drug Therapy Initiative, and the Education for Quality Improvement in Patient Care initiative. In her interview with us, the lead investigator said that that the investigation encountered challenges with the universities providing information. The contracts specialist said that he recalled meeting with UVic about the investigation, “but they were not willing to tell anything …They CHAPTER 12 protect those guys pretty good. The – their employees very, very well.” agreements, and they became concerned that the scope of their data access created risks of potential misuse. However, from our review of the records, we determined The Ministry of Health’s decision to suspend Dr. Dormuth’s that the universities fully cooperated with the ministry. data access on June 7, 2012, and the data access for the Any challenges that the ministry faced with respect to the remainder of TI’s staff and researchers on July 17, 2012, universities were its own creation. The ministry failed to brought a significant portion of the TI’s work to a halt. deal with the universities in the transparent, formal and The ministry’s decision to suspend the TI contract was a professional manner we would expect of a public body. direct consequence of its concerns that Dr. Dormuth either had used, or was in a position to use, his data access 12.3.2  Therapeutics Initiative (TI) Contracts improperly. As we have described in Chapter 7, at the As described in Chapter 4, by the time the Ministry of time of the suspension the ministry did not have, nor did Health investigation began in 2012, its longstanding reit ever find, evidence that Dr. Dormuth (or anybody else lationship with the TI had undergone significant changes, associated with the TI) used their data access inapproprimost of which arose from the 2008 Pharmaceutical Task ately. In fact, although certain data stewards in the minForce report and the ministry’s decision to implement its istry had longstanding concerns that the scope of the TI’s recommendations. Implementing these recommendations data access exposed the ministry to risk of data misuse, required substantial revisions to the TI contract, which the ministry never verified whether there was any factual altered the work the TI did for the ministry and reduced basis to support this suspicion. When this concern was the initiative’s funding. Nevertheless, by the time the presented to the ministry’s investigators, they accepted amended contract was completed in March 2012, the TI the allegation of the potential risk as some evidence that believed they had received some measure of clarity about the TI had actually misused its data access. their ongoing relationship with the ministry. On September 19, 2012, Ms. Walman directed UBC to The steps the ministry had taken to rework the TI agreesuspend its work on the TI contract “pending the result of ment contributed to the complainant’s decision to submit the investigation into them. Until that investigation is reher initial complaint to the Office of the Auditor General. solved, no contracts will be renewed or work is to continue This partly explains the reason both Dr. Dormuth and the on them.” At the time, the ministry did not provide UBC TI are named in the complaint. with any information explaining why the suspension was As noted in Chapter 5, the complainant’s initial complaint required, except to say that the contract would remain about the TI focused on concerns about contracting suspended pending investigation. practices, data access issues and intellectual property The suspension of the contract adversely impacted the rights. In her role completing data sharing agreements, TI because, in accordance with its recently completed the complainant had been exposed to some aspects of agreement, ministry funding made up the large portion the ministry’s relationship with the TI prior to making her of the TI’s annual budget. The absence of additional decomplaint. At the time it was the ministry’s practice not to tails explaining why the contract suspension was justified provide its complete contracting file to the data stewards caused UBC uncertainty about whether the suspensions when they worked on the corresponding data or informawere intended to apply to data access only, or also to tion sharing agreements. Lacking access to the ministry’s the contract funding arrangements. Once the ministry exprogram area files raised concerns within the DARS group plained that the suspension was intended to cover both because they were unable to see complete details about the data and financial components, UBC faced a significant the contracts that supported the data access arrangefunding problem regarding the TI. It had to decide whether ments they were asked to approve. Nevertheless, the data to fund the TI out of its larger operating budget to prevent stewards were aware that both Dr. Dormuth and the TI the TI from effectively ceasing operations while awaiting could access ministry data under the terms of several completion of the ministry’s investigation. 255 256 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS UBC asked the ministry to clarify the substantive reasons for the contract suspension. This clarification was not forthcoming. In October 2012, UBC contacted the ministry to explain the steps it had taken on its own initiative in response to the notice of suspension. Since the ministry’s suspension letter did not provide any indication of how long the suspension was expected to last, UBC performed its own review to try to gain a better understanding of the status of each TI project and the potential impact of the suspensions. From this review, UBC informed the ministry that the suspension impacted the TI’s work differently depending on whether it was the TI’s funding or data access arrangements that were suspended. Apart from some requests for financial and background information (described in 12.3.1, above), the ministry’s substantive communication with UBC about issues specific to the TI was limited after December 2012. By April 5, 2013, UBC had received no further clarification from the ministry on the data access issue or on the longer-term funding status of the TI. Moreover, the ministry had still not fully articulated its specific concerns about the TI to UBC. Although UBC initially made the decision to fund the TI itself, pending further discussions with the ministry, by the spring of 2013, UBC officials worried that continuation of its bridge financing to keep the TI afloat was no longer tenable. UBC informed the ministry that without clarifiFor example, the educational components of the TI agree- cation of the ministry’s residual concerns and restoration ment were not impacted by the data suspension because of the TI’s core funding, it would have to discharge the the TI did not need ministry data to carry out this work. faculty and staff funded through the TI’s contract. Thus, UBC told the ministry that this part of the TI’s work As discussed above, the ministry continued to have oncould continue, provided the funding for it was restored. going concerns about Dr. Dormuth, but it did not raise On the other hand, approximately one-quarter of the fund- these concerns with UBC directly or ask UBC to take ing the TI received from the ministry was earmarked to meaningful steps to assist it in dispelling these concerns. support the the TI’s PEG group led by Dr. Dormuth. When it For the ministry, restoring the TI contract was inextricattempted to clarify the scope of the suspension, UBC also ably tied to resolving their concerns about Dr. Dormuth. explained that the PEG group only used the de-identified However (as we described in section 12.2), the ministry’s data available through its pre-existing and ministry-ap- investigation team took no meaningful steps to investiproved data “views.” UBC believed the TI could continue gate these concerns until Stephen Brown, who became this aspect of its work in the short-term, despite the fund- Deputy Minister of Health in June 2013, reconsidered the ing suspension, provided the suspension was only for a ministry’s approach to the investigation. Further, in July short period. 2013, Dr. Dormuth and the TI’s Managing Director sought Having not provided UBC with more detail explaining why to clarify the ministry’s position after more than one year the contract suspension was justified, once the contracts of delay since the initial data suspension. were suspended the onus effectively shifted to UBC to demonstrate why the contracts should not have been suspended in the first place and to propose solutions to restart them to the ministry’s satisfaction. Once it received UBC’s proposals, the ministry took steps to verify whether, and to what extent, the TI’s contractual funding could be restored. Although the ministry agreed to restart some of the TI’s work connected with the the Alzheimer’s Drug Therapy Initiative (ADTI) contract, that had been suspended simultaneously, the bulk of TI contract remained suspended until October 2013, during which time UBC was under pressure to fund the TI without the ministry’s contribution. Dr. Dormuth met with the ministry in August 2013 and, by the end of September 2013, the ministry contacted UBC to signal its willingness to restart the TI contract. Shortly after that, the ministry began working with UBC to amend the TI’s agreement to resolve the funding interruption and redefine some of the TI’s deliverables. This process was ultimately completed by early 2014. Under this newly amended agreement, the ministry and UBC agreed to clarify the PEG’s role within the TI and both sides agreed to certain governance changes. Significantly, while the agreement also reinstated the TI’s core funding back to $550,000, over $288,000 in funding was not provided as a result of the suspension and interruption while the ministry’s investigation was underway from 2012 to 2013. CHAPTER 12 12.3.3  Alzheimer’s Drug Therapy Initiative (ADTI) her subsequently to clarify her concerns. These concerns encompassed several issues, including: As we noted in chapter 4, the ADTI was established in potential conflicts of interest between researchers and ministry staff 2007 following an announcement by then-Premier Gordon Campbell to address a clinical knowledge gap around the whether the TI’s role in ADTI resulted from “preferuse and effectiveness of a specific class of drugs (cholinential treatment” esterase inhibitors) for patients diagnosed with mild to whether the ADTI procurement process was strucmoderate Alzheimer’s disease. tured to try to conceal which researchers received The primary goal of ADTI was to enable the ministry to work on the project and the fact that the agreedevelop evidence to support a decision to list, or continue ments with UBC and UVic had been direct awards to refuse to list, these drugs for inclusion in the provincial whether the ADTI contracts improperly assigned drug formulary. Additionally, ADTI was intended to allow intellectual property rights to the universities the ministry to engage with researchers, industry and patient groups to assist with the ministry’s drug listing whether the agreements facilitated improper use of ministry data decisions. As a scientific research project, ADTI relied on significant input from researchers from the outset. More- Such concerns, which were later adopted by the Ministry over, the ministry expected that its own employees would of Health investigation team, arose in particular from the have a significant role in helping to shape ADTI through fact that four of the five ADTI sub-studies were led by participation in its sub-studies and working groups. UVic. UVic later agreed with UBC to subcontract work on ADTI consisted of five related projects that assessed one of those studies to UBC and the TI. Based on the comthe impacts of the drugs on patient outcomes as well plainant’s allegations the investigators were concerned as assessing the impressions of caregivers about the that this UBC subcontract was an attempt by the ADTI effectiveness of the drugs. In addition, one of the ADTI researchers to circumvent the ministry’s contracting rules projects was intended to test the reliability and validity of and data access protocols. However, the investigators two methodological measurement tools for assessing the failed to realize that each of these studies was included in progress of the disease. As such, the development of ADTI the main ADTI agreement and its subsequent amendments, and the contract structure reflected both the project’s or was included in a separate agreement supported by the complexity and the expectation that its structure would Ministry of Health. change over time as a result of the scientific research that was undertaken. As part of the Ministry of Health’s initial review of the complaint, the complainant and other employees in the Although changes to the ADTI contract and funding struc- Data Access, Research and Stewardship division were ture over time were approved by the appropriate senior asked to clarify their concerns using ADTI as an example. 5 executives in the ministry, the many interlocking contracts This resulted in the ADTI summary document. Although and funding arrangements increased the complexity of that summary stated that it did not “necessarily paint the roles assigned to ministry employees and external the entire picture,” it contained eight pages of serious researchers in the project. The complexity of the ADTI allegations about the project. However, most of these alraised red flags with the complainant when she was un- legations were incorrect and based on a misunderstanding able to access all of the information about the program’s of the events that led to the ADTI’s creation. genesis and structure. As a result, it became a significant One of the assertions focused on the complainant’s confocus of the concerns the complainant highlighted for the cern that she had been asked to complete an information ministry when it began its initial review of her complaint sharing agreement (ISA) to facilitate the researchers’ to the Auditor General, and after the ministry had asked access to data. The complainant maintained, however, 5 See Chapter 5. 257 258 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS that she could not find any legal authority enabling the datasets covered by the suspension. UVic was also conministry to provide the ADTI researchers with this data. cerned about the impact of the data suspensions on its This question arose in part from a misunderstanding about ADTI deliverable schedule and asked the ministry to clarify whether the ADTI was a ministry sponsored project, and how long it expected the investigation to take. the resulting concern about whether the ADTI research- In a pair of letters dated September 19, 2012, Ms. Walers were trying get data access ahead of other external man directed UVic and UBC to cease all work on their researchers. The ADTI summary document also raised respective portions of the ADTI contract pending the concerns about the ADTI contracts, including an allegation outcome of the investigation. The letters provided no that the ADTI was run under the auspices of the TI and new information about the substance of the allegations formed part of Health Canada’s pan-Canadian Drug Safe- related to ADTI. Moreover, the ADTI contract did not have ty and Effectiveness Network (DSEN). Neither of these a suspension provision in it. Thus it was unclear whether assertions was correct. the ministry actually had the power to suspend work on Although the complaint was worried that some wrong- the contracts without triggering the 30-day termination doing was occurring inside the ADTI, during our interview provision. Regardless, both universities indicated that they she explained that she did not know with certainty wheth- still wished to cooperate with the ministry and agreed not er this was actually the case. She also explained that to do additional work pending the investigation. others shared her concerns, which was another reason Since two of the four ADTI studies being done at UVic did why she felt she should raise the issues so they could be not require ministry data, UVic submitted a proposal to the examined. ministry on September 28, 2012 to try to get the projects The complainant had no control over how the investiga- restarted. In its proposal, the university included information team subsequently treated the ADTI chronology she tion highlighting the roles of each research team member helped create. Nevertheless, as we have described in connected with each project. When she received UVic’s Chapter 7, the Ministry of Health investigation team ac- proposal, Ms. Walman asked her staff to explain which cepted many of the assertions in the ADTI chronology as parts of the project required data access and which did factual, and did not take sufficient steps to confirm wheth- not. She also sought a briefing on the financial implications er the assertions in the ADTI chronology were accurate. of the proposed project restart. After consulting with her As a result the errors in the ADTI chronology persisted staff, Ms. Walman approved the proposal to restart the and the document influenced the ministry’s ongoing inves- two studies, and the ministry and UVic continued to work tigation of, and conclusions about, both employees and together to allow for the continuation of approximately 65 external researchers connected to the ADTI. per cent of the ADTI work. 12.3.3.1  ADTI Contract Suspension with UVic and UBC The ministry’s suspension of the ADTI contracts occurred simultaneously with the TI contract largely because the ministry investigation treated them the same way. For each set of agreements, the ministry was concerned that Dr. Dormuth’s data access and his relationship with Dr. Maclure, posed risks to the ministry. As a result, after Dr. Dormuth’s individual data access had been suspended, the ministry’s lead investigator contacted UVic and UBC in July 2012 to inform them that data access for ADTI was being suspended while the ministry’s investigation was ongoing. Both UBC and UVic told the ministry they wanted to assist the investigation as much as possible. UVic asked the lead investigator to clarify the specific For its part, UBC outlined its concerns about the suspension of its ADTI agreements at the same time it responded to the TI contract suspension in October 2012. As it had done with the TI agreement, UBC performed a program review to gain a better understanding of the status of each project and the potential impact of the suspension on each. UBC also informed the ministry that it had contacted each of the ADTI project leaders and requested that they suspend activities pending the ministry’s review. UBC’s ADTI program review report outlined the impacts of the suspensions and sought clarity from the ministry whether the scope of the suspension applied to the data or the funding arrangements. As it had done with its TI program CHAPTER 12 review, UBC also noted that the suspension impacted its three ADTI projects differently. the ministry failed to follow a reasonable process when dealing with the TI and ADTI contract suspensions. Between October and December 2012, UBC provided the ministry with details about which projects did not require data access and asked that the ministry restart those parts of the project. After considering UBC’s review the ministry agreed to allow UBC to continue working on the ADTI sub-study, for which it was the lead contractor and on the education sub-study, because those parts of ADTI did not require ministry data. The parts of ADTI connected with the TI, however, remained suspended. Similarly, once the ministry suspended the contracts, it should have acted in a timely way to investigate the veracity of the concerns raised. This partially occurred as the ministry restarted some components of both the TI and the ADTI contracts once it determined that those did not require or use administrative health data. However, from a fairness perspective and in order to achieve the ministry’s research objectives, we would expect the ministry to have already identified which parts of the TI and ADTI projects used ministry data and which did not before suspending the agreements in their entirety. 12.3.3.2  Analysis: Suspension of ADTI and TI Contract The ministry’s decision to suspend both the ADTI and TI contracts was a direct consequence of its suspicions about Dr. Dormuth. Because the ministry viewed the ADTI and TI contracts as interrelated, it followed substantially the same approach when it suspended them. Once the ministry suspended the data access for Dr. Dormuth in June 2012, the investigation team widened its review until it ultimately included both the ADTI and TI contracts in their entirety. Moreover, the ministry’s actions unreasonably shifted the onus to Dr. Dormuth and the universities to demonstrate how and why the contracts should be left intact. The lack of clear notice of the reasons for the suspension put the universities in a position where they had to speculate about the ministry’s concerns. As UBC’s October 2012 response to the ministry made clear, the university was left to speculate whether the ministry intended to suspend the data portions of the agreements, the financial portions, When the investigation began, the TI’s existing contri- or both. These distinctions were important because, as bution agreement had been in place since 2004. The UBC noted, they had different impacts on the research ministry’s long experience with the TI, its policy advisory programs and their own ability to fund the work. role, the changes arising from the Pharmaceutical Task Force, and the subsequent amendments to its contribution In our view, the ministry’s subsequent lack of timeliness agreement all meant there was a large volume of material was a significant problem with the ministry’s treatment available in the ministry’s files. This material should have of the TI. To this extent, the ministry had difficulty separenabled the investigation team to quickly examine both ating its concerns about Dr. Dormuth’s data access from Dr. Dormuth’s role and that of the TI. Moreover, both the the TI as a whole. As a result, large parts of the TI’s data TI and ADTI had a high profile within PSD for several years, access and funding were adversely impacted while the and had a combined total budget allocation of over $80 ministry worked through its concerns about Dr. Dormuth. The ministry acted unreasonably through its lengthy demillion. lays assessing Dr. Dormuth’s position. As we have noted Although the ministry maintained that it intended to re- this series of delays began from the time the ministry view its relationships with the TI and ADTI programs and suspended Dr. Dormuth’s data access (June 2012), sustheir corresponding data and financial aspects during pended the TI agreements (September 2012), made its Phase 2 of the investigation, it appears clear that the data demands of Dr. Dormuth (October–December 2012) ministry did not meaningfully assess these agreements and continued until it finally spoke with him directly about on their own merits. Instead the investigation focused the concerns (August 2013) and took steps to restart the and relied on a series of unfounded allegations that TI contract (October 2013). wrongdoing had taken place within the ADTI. In our view, having established no evidentiary basis beyond the mere existence of the allegations to justify the suspensions, 259 260 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS 12.3.4  Education for Quality Improvement in Patient Care (EQIP) Contract As we described in chapter 4, EQIP was launched in 2006 as a partnership between the Ministry of Health, the BC Medical Association (as it then was), UBC and UVic. It was part of PSD’s strategy to optimize physician use of prescription drugs and, as a result, maintain and improve the health of British Columbians. The EQIP agreement was the basis for a multi-faceted and collaborative initiative involving multiple partners over many years. reduce overhead costs which are charged by the university in accordance with its policy.6 In this case, the ministry expected that by routing the contract through the B.C. Academic Chair for Patient Safety, the EQIP initiative could potentially recapture funds that would otherwise go to overhead, for the benefit of the EQIP initiative. The decision to reroute the contract was made by the executive director in coordination with the EQIP working group. The work done by EQIP was seen to be consistent with the role of the Chair for Patient Safety. Because Dr. Maclure occupied the Chair position, the parties provided The EQIP initiative provided family physicians with personin the contract that Dr. Maclure would not receive any alized computer-generated prescribing portraits for a parremuneration from the EQIP contract. ticular disease or health topic with educational messages and case studies that “encourage reflection on practice.” At the time the contract expired in 2012, the EQIP initiative These portraits were a “snapshot” of an individual phys- had completed all the required portraits for all topics and ician’s prescribing practices created by PFIA, one of the mailed them out in accordance with the expected schedEQIP subcontractors, using de-identified administrative ule, with the exception of two further planned mail outs data. After the portraits were sent to the doctors, they that did not proceed. were returned to researchers and scientifically evaluated The contractual framework for the EQIP initiative was to assess the impact of the portraits on physicians’ pre- a contribution agreement (also called a “transfer under scribing practices. agreement”) between the Ministry of Health and UBC. The parties had approved two subcontractors to the agreeWhen the first EQIP agreement was finalized, Dr. Maclure was on a leave of absence from the Ministry of Health and ment: UVic and PFIA (in which Dr. Dormuth and two of his was working as a professor at UVic. The 2006 agreement colleagues were partners). The subcontractors performed provided that Dr. Maclure would be the Implementation different roles and only the PFIA contractors had access Director for EQIP. As Implementation Director, Dr. Maclure to de-identified administrative data. UVic handled most oversaw the prescribing portraits by: determining how of the administrative aspects of the initiative involving they would be presented, evaluating their accuracy, ob- the working group and confidential communications with taining feedback from physicians, determining the costs physicians. PFIA’s role was to create the prescribing porof the portraits, reporting back to the working group, and traits and conduct the evaluations. general problem solving. In this role, he did not access In planning and implementing EQIP, the parties were carethe administrative health data nor create the actual por- ful to ensure sufficient measures were in place to secure traits; these tasks were assigned exclusively to the PFIA the administrative health data and to maintain the privacy contractor. of physicians and their patients. These measures were set Soon after the contract was finalized, Dr. Maclure returned out in a Privacy Impact Assessment and a data sharing to the ministry full time, where he remained Implementa- agreement. At the outset, the data access arrangement used by EQIP was reviewed by the Legal Services Branch tion Director to ensure the EQIP initiative continued. of the Ministry of Justice to ensure it complied with legisWhen the EQIP contract was renewed in 2009, the minlation. At the time of the 2012 investigation, the data sharistry routed the head contract with UBC through the office ing agreement had expired and the Data Access, Research of the B.C. Academic Chair for Patient Safety. The main and Stewardship section was working on an information consideration in this decision was to allow the ministry to 6 University of British Columbia, “UBC Policy on Indirect Costs of Research,” . CHAPTER 12 sharing agreement (ISA) to replace it, a process that was taking years to complete. Even though the ISA was not complete, the Director of Data Access, Research and Stewardship had provided written authorization for the PFIA contractors to have ongoing data access so that they could complete their work. Since there was no legislative requirement for an ISA, the Director made this practical decision which allowed the EQIP initiative to proceed. In addition, the PharmaNet Stewardship Committee had reviewed and approved PFIA’s administrative health data access until August 31, 2012, or until the expiry of the project. The evidence we reviewed in our investigation indicated that those engaged in the initiative were following the data access and security provisions as required. 12.3.4.1  EQIP Suspension and Expiration As described above, in June 2012, the ministry suspended data access for Dr. Dormuth, who was part of PFIA. In mid-July 2012, the ministry suspended data for the other two contractors involved in PFIA. At the same time, it also suspended the employment of Dr. Maclure, who was Director of Implementation for EQIP. It was the ministry’s decision to suspend data access for the PFIA contractors that prevented the EQIP initiative from continuing. The initiative was unofficially suspended until it expired on August 31, 2012. The contract itself was not suspended as there was no provision for suspension in the agreement. During a session of the Legislative Assembly in May 2016, the Minister of Health was asked why EQIP was stopped. He said: I want to correct the member’s inference that it was terminated as a result of what was going on in the Health Ministry. The reality is that that contract expired coincidently with all of the things that were happening in the Health Ministry. It has not been renewed. But we know that the College of Physicians and Surgeons is looking at a quality assurance program that would in many ways, potentially, mimic the prescriber portrait program, or the EQIP program, that we had. 7 7 While the Minister of Health was correct that the EQIP contribution agreement expired, it was not “coincidental.” The end of EQIP was in fact the direct result of the investigation. All of the evidence we reviewed supports the conclusion that, but for the 2012 investigation, the ministry would have not only renewed the EQIP initiative, but expanded aspects of it, including other “best prescribing” initiatives. After PFIA’s data suspensions, PSD staff continued managing the contract for the next month and a half in an information void. On August 14, 2012, with only two weeks left on the existing contract, the then-co-chair of the EQIP working group and the BC Medical Association representative on the working group contacted the ministry to urge it to make a decision about the future of EQIP. The Executive Director responded to explain that she was: … not permitted to move on updating the EQIP contract until after the internal review of contracts, contracting processes, and data access is complete. When the review is complete, I will need to integrate any recommendations into how we go forward with managing this and other contracts. The review was supposed to be done already, so I am hopeful that we will hear results soon. When the EQIP matter was brought to her attention, Ms. Walman was on vacation. This put Ms. Walman in the position of having to deal with the matter remotely. Ms. Walman, who was new to the Pharmaceutical Services Division, was not familiar with EQIP and took steps to enquire into the matter. On August 15, 2012, Ms. Walman asked the Executive Director if a one-month extension to the EQIP agreement would “help us and them?” The Executive Director replied in the affirmative. Ms. Walman asked the Executive Director to provide a short “description of contract. Who it’s with, current status of contract work, what we [need] done and why and request an extension for month of September, with cost.” In response, the Executive Director provided a detailed written status update containing three options and recommendations: Minister Terry Lake, British Columbia Legislative Assembly, Hansard, 4 May 2016, 12715-12716 . 261 262 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS Current status:   The following works are outstanding: Whichever option is chosen, we would like to give the EQIP group some indication of whether PSD plans for their sort of work (ie/ prescribing portraits to physicians), to continue in the future – whether via Direct Award, RFP, or other method. Are we permitted to provide any response on this? If so, what can we say? ƒƒ Mailing of the “Second-line therapy for patients with Type 2 diabetes” ƒƒ Completion of the “Angiotensin receptor blockers” portrait ƒƒ Impact evaluation for portraits as specified in the contract ƒƒ Final report (specifics described in contract) due 90 days after the end of Term Of note, EQIP Working Group (advisory function) meets monthly. Contractor has asked for directions on how to proceed, as physician members receive honoraria for attending from contractor. Contractor’s data access was turned off in approximately July. Work was continuing until then, but work has not been possible since data access was turned off. … Options: 1. Reinstate data access and extend term to September 30, 2012 so that all deliverables can be completed. Specify that final report is required for full payment. … 2. Reinstate data access and extend term to September 30, 2012 so that all deliverables except the final report can be completed. … 3. Do not reinstate data access. … do not extend contract. Final deliverables will not be met. …  Recommendation: Option 1) Reinstate data access and extend term to September 30, 2012 so that all deliverables can be completed. Specify that final report is required for full payment. … On August 16, 2012, Ms. Walman forwarded this email to the lead investigator. Ms. Walman decided on August 17, 2012, not to renew or extend the contract because of the ongoing investigation. She informed Mr. Sidhu of her decision and, at the same time, forwarded the Executive Director’s email containing the recommendations to Mr. Sidhu. Ms. Walman noted that as the ministry had suspended EQIP’s data access, the contractors would be unable to complete their deliverables. She asked Mr. Sidhu to have a lawyer look at the agreement and consider whether “any liabilities might be incurred by MoH.” At the request of Mr. Sidhu, the HSS lawyer reviewed the EQIP agreement. He told Mr. Sidhu that the agreement could be terminated on 30 days’ notice without cause, or terminated immediately with cause. He noted that the agreement that was set to expire on August 31, 2012, and had no provision for renewal or requirement of notice not to renew. The HSS lawyer further noted that if the ministry wished to continue the work under the agreement, it could suspend data access to the individuals about whom it was concerned, ask UVic to get new subcontractors who were acceptable to the Ministry of Health, and then resume data access. He said that if UVic was not prepared to do that to the ministry’s satisfaction, then the ministry should suspend work or terminate the agreement until “the matter is cleared up.” He said it should be emphasized that the ministry owned the information produced and received under the agreement, and that UVic and its subcontractor were obligated by contract to protect it. He also said that if the ministry had reason to believe that persons who had access to the information under the agreement were misusing it, the agreement could be terminated immediately and data access cut off. He noted he was not sure if the CHAPTER 12 information provided under the agreement was personal complainant identified EQIP as a contract that should be information or “more generalized annonomized [sic] infor- added to the list of contracts under review. She identified mation.” He further noted that, under the agreement, the EQIP primarily because of her concerns about individuals parties were required to disclose any conflicts of interest. who were involved with the initiative. She made broadHe suggested holding discussions with UVic to ensure that based, vague allegations about favouritism and the data people the ministry were concerned about did not get data practices of individuals in relation to the EQIP initiative. access indirectly if the agreement continued. Aside from the general concerns articulated by the comOn August 21, 2012, the lead investigator followed up plainant, the Ministry of Health had no documentation with the HSS lawyer in an email. Ms. Walman was still showing specific allegations about the EQIP agreement on her annual leave at this time. The lead investigator or about the individuals who were doing work under the asked counsel whether there was “anything that says agreement. The investigators and decision-makers we we must renew or notice not to renew?” The HSS lawyer interviewed did not articulate with any specificity their responded in the negative. The lead investigator replied, concerns related to data access, security or the specific “Thanks so we do not have to renew.” These emails sug- data use. gest that the lead investigator had assumed a role in seek- The PSA investigator gave evidence that her general ing advice about renewal of the EQIP agreement. understanding of the concern was that external conOn August 22, 2012, Ms. Walman wrote to the Executive Director responsible for EQIP to inform her that she (Ms. Walman) was “not proceeding with an extension. We will deal with this as part of review.” tractors (including those who were on EQIP) kept getting contracts and were potentially misusing their data access to get other contracts. The vague concern about “potential misuse” of data was not supported by any evidence. When we asked Ms. Walman about the decision to let the EQIP agreement expire without renewal, she told us, “the contract was done. The program – the project, was done, technically. I mean, there’s always interest in continuing, obviously. It’s been going on since 2006.” Similarly, when we interviewed Ms. Walman, she did not articulate having any clear concern about EQIP. She told us: On September 19, 2012, in a letter that referenced the TI and ADTI contracts as well, Ms. Walman wrote to UBC: … as a result of a review of certain contracts, the Ministry of Health hereby instructs you to immediately suspend work on the above-noted contract (EQIP-2010), no contract will be renewed or work is to continue on them. The Ministry of Health is aware that the contracts may not be completed at this time, and does not expect the final work product as specified in the contracts to be delivered at this time. At this point, however, the EQIP contract was over, having expired on August 31, 2012. 12.3.4.2  Analysis: Suspension and Expiry of EQIP Contract When the ministry was conducting its initial review of her complaint to the Office of the Auditor General, the … so, basically, EQIP – I mean, I think it was just – it was just one of the contracts that was suspended, pending kind of the investigation. So I don’t think it ever – it – I don’t – I don’t think there was huge questions about it in particular – that I remember. But what happened is that it – during the – you know, it started in 2006, and it expired in August of 2012. So it was suspended for a very short period of time, and then expired. At the time, available information to inform a decision to cease or continue with the EQIP initiative included: EQIP documents that set out data access and security protocols program area documents (including briefing notes) a written submission from Dr. Maclure to the investigation team in June 2012, where he outlined the history of EQIP information gained from speaking with individuals involved in the initiative 263 264 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS The ministry did not follow a reasonable or fair process and to not renew the EQIP agreement. Unfortunately, the when dealing with the EQIP contract. Once it suspended decision making process around the renewal lacked sufdata access for the EQIP contractors, we would have ex- ficient time and consideration to determine if there was pected someone within the ministry to act in a timely way any reasonable risk to privacy with respect to EQIP and of to determine, fairly and objectively, whether the data was the initiative’s value to the ministry’s other public health at risk and if not, to resume work so the initiative could objectives. continue. That the ministry did not do so meant that a longstanding initiative was unnecessarily jeopardized and, 12.4  Suspension and Termination ultimately, ended. Because EQIP was a collaborative initiative involving mul- of other Ministry of Health tiple partners who had spent time and resources in devel- Contracts oping and implementing EQIP we would have expected as part of the normal process the ministry to engage in The Ministry of Health investigation team identified seversome level of consultation with those stakeholders before al contracts not associated with the PSD that came under determining whether or not to renew the contract. As we scrutiny because of concerns about the contractors’ or described in Chapter 4, the EQIP initiative was consistent subcontractors’ use of ministry data. with the evidence-informed policy-making approach that The ministry investigation team focused on four non-PSD had been developed in PSD over the previous six years. contracts 9: We expect any government decision-maker who is consid- 1. contract between the Ministry of Health, Health Secering whether to continue a program to follow a reasontor Information Management/Information Technology 8 able process in coming to a decision. This is particularly Division, and Resonate Solutions Inc. true when – in the case of EQIP – the program is long2. contract between the Ministry of Health, Planning and standing and the sudden termination of the program could Innovation Division, and Quantum Analytics have significant impacts on the division’s operations and 3. contract between the Ministry of Health, Population relationships with key external stakeholders. and Public Health Division, and Blue Thorn Research However, the timing in this case was unfortunate. The and Analysis Group Inc. EQIP agreement lapsed in the wake of a multitude of other issues, particularly around the terminations, that the in- 4. contract between the Ministry of Health, Primary Health Care and Specialist Services Branch and Dr. vestigation team and decision-makers were concurrently William Warburton. handling at the time. In addition, Ms. Kislock, who had responsibility for data suspensions, was away from the 12.4.1  Contract with Resonate Solutions Inc. office until after the EQIP agreement expired. Further, Ms. Walman was away on leave when the issue arose and Resonate Solutions Inc. (Resonate) held a contract at the point the agreement expired. While she took steps with the Ministry of Health’s Health Sector Information to enquire into EQIP, she would not have been in the best Management/Information Technology Division for the demaintenance of a data warehouse called position to fully consider the matter given that she was velopment and 10 Resonate had anywhere from 5 to 50 indiHealthideas. on leave when the agreement lapsed. It was within the discretion of a decision-maker to suspend data access vidual consultants at any given time. Resonate won the Healthideas contract through a competitive process in 8 See Chapter 3. 9 The Ministry of Health investigation team also focused on Dr. William Warburton’s contract with the Primary Health Care Program of the Medical Services and Heath Human Resources Division of the Ministry of Health. The circumstances of the suspension of Dr. Warburton’s data access and the subsequent termination of his contract are discussed in Chapter 7. 10 The publicly available version of Healthideas can be found at “Welcome to Healthideas” . CHAPTER 12 2008, and since that date had received periodic contract extensions. The Healthideas contract was the company’s main source of work. The Resonate contract first came under scrutiny by the ministry’s investigation team after the complainant forwarded an email related to the contract to the team on June 21, 2012, identifying the contract as one she believed should be investigated. Her concern arose because two of Resonate’s contractors had professional and business associations with Dr. Colin Dormuth. They were Contractors 1 and 2 as described in section 12.2.1, above. Contractor 2 was both a contractor and director of Resonate. When we asked Ms. Kislock why the Resonate contract was captured by the investigation, she said: I think generally they were captured by the investigation because they had some involvement with either the TI or PEG or ADTI. They were involved doing work in that area. Or thought to have been involved. So their – their Resonate contract was suspended and their access was suspended.  … I don’t think we understood what they were doing. So for sure they were contracted to do IT-related work on the Healthideas database. But was that solely what that – what that access to the Healthideas data warehouse was allowing them to do? can give on the nature of any accusations, who raised the accusations, on what evidence, and what timelines you would expect for resolution. We would also like to know why their Healthideas accounts have been disabled considering the Resonate contract is outside the scope of the PSD review. Losing database access for two of our key subject matter experts and business analysts has put Resonate in the difficult position of not being able to meet some of our contracted deliverables in a timely manner. Neither the decision nor the rationale was communicated and we find it difficult to plan a resourcing around this event. In addition, our ability to deliver joint Michael Smith Foundation/Ministry of Health deliverable … has been significantly affected by this occurrence. Following this letter, the Ministry of Health and Resonate’s president discussed the next steps. The contracts specialist on the Ministry of Health’s investigation team, suggested this response in an email: These people are to be removed from this contract as the result of a ministry investigation currently underway. As a precaution there are a number of people who have had access removed to Ministry data until the investigation is complete. Resonate’s president indicated that if the ministry wanted the two contractors removed from the contract without When the ministry suspended the data access for Con- the 30 days’ notice required by the contract, absent a tractors 1 and 2 in July 2012, it did not only suspend their written confirmation from the ministry that it had evidence research data accounts (for PEG, ADTI and EQIP), it also that they had used data inappropriately, then he wanted suspended their access to data for their Healthideas work. a written statement that his request for 30 days’ notice As we discussed in section 12.2.1there was no evidence was denied. At the direction of the lead investigator, an that either of the contractors inappropriately used ministry employee at the Ministry of Health sought advice from an data in either of their roles as external researchers or HSS lawyer because she was unable to locate a provision service providers. in the contract regarding the 30 days’ notice requirement. On September 5, 2012, Resonate’s president wrote to the The HSS lawyer pointed out that such a provision was lead investigator informing her that the data suspensions contained in a schedule to the Resonate contract. had affected the two contractors’ Healthideas work. He On September 17, 2012, Contractor 2 wrote an email to his said: Resonate and ministry colleagues informing them that he We are concerned that there is misinformation or an accusation that has not been stated to them. We would appreciate as much background as you was being removed from the Healthideas contract without 30 days’ notice. When we spoke with him, he said the president told him that it was best not to “rock the boat.” 265 266 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS We understand that the other contractor was removed from the Healthideas contract also at that time. On October 16, 2012, a member of the investigation team forwarded a copy of the Resonate contract to the HSS lawyer, noting that “we will want to discuss cancelation of the contract and the risks.” you as it may seem sudden from the Resonate perspective – [the president] seemed quite surprised at my action. If you would like to discuss further – I am in my office. Team Meta was the same group of individuals who carried out the Resonate contract, less the two contractors. On November 1, 2012, an Executive Director in the min- A briefing note with respect to the Resonate contract indiistry’s Information Management and Knowledge Services cates that this approach was “screened” by the Ministry Branch asked for advice from the Office of the Comptrol- of Justice. The HSS lawyer told us that he could not say ler General’s Investigation and Forensic Unit (IU) team with certainty whether he gave advice on cancelling the on what steps would be appropriate for the ministry to Resonate contract. He said that if he gave advice on cantake in relation to the Resonate contract. The IU manager celling it, “it was strictly on the basis of what you have informed the ministry that the IU was reviewing Resonate. to do to cancel it,” such as what kind of notice is required. One of the IU investigators told us that it was one of the He said that he may have given advice regarding how to approximately 50 contracts that was “originally pulled” for continue the work of Resonate without the involvement of the IU to review. However, the IU never actually reviewed the two contractors. He said that the question he would the Resonate contract.11 have considered was how the Ministry of Health could Despite the fact that it had not reviewed the contract, the structure the arrangement, not whether the arrangement IU decided it was appropriate to identify some potential was appropriate: risks related to data security it saw with the ministry’s proposed plan to form a new contract with Resonate’s subcontractors. One IU investigator suggested it was risky for the contractors to have continued access to government email or servers as Healthideas analysts because, as “technically sophisticated” individuals, they could delete, change or otherwise inappropriately use their emails and IDIR access.12 It is not clear on what basis the IU identified such risks. Ms. Kislock terminated Resonate’s Healthideas contract in a letter dated November 6, 2012. The rationale provided to the president of Resonate was that the ministry was going “in a new direction.” As she described in her internal communication to the contracts specialist: I just delivered a letter to … Resonate – advising the ministry is cancelling their contract as provided for in the contract. I advised him that we were cancelling this contract as we were going in a new direction. To support that new direction – I indicated that I would like to do a 6 month direct award contract with Team Meta. I flag this for Well, I didn’t give advice on the appropriateness. I don’t think the appropriateness had anything to do with it, it’s more just a question of the – you know, legally can you do it? Yeah, sure they can, so … So “appropriate” would have been an interesting question. If there was evidence of bad faith somehow, or some reason to think that it was inappropriate, but, you know, given – if they decided that they didn’t want certain people with information, but they needed the work to get done, then they could certainly use that method to – to get the work done, until matters were resolved, and those people were either cleared or not. Although it had terminated the Resonate contract, the ministry still needed the services that Resonate had provided. As described in Ms. Kislock’s email above, the ministry provided two short-term contracts to Team Meta as a stop gap while it developed a strategy moving forward. The Ministry of Health received advice from the HSS lawyer and the Procurement Services Branch about how to structure a new contract while also avoiding contracting 11 This contract was outside the IU’s terms of reference and no written analysis in relation to this contract was contained in the IU’s file material or in the body of its report. 12 IDIR is the unique identifier government employees use to log on to their workstations and access many government applications. CHAPTER 12 with the individuals about whom it had concerns. The HSS lawyer advised the Acting Chief Data Steward that completing a direct award with a notice of intent was a good approach to addressing the matter. The only way in which the ministry went “in a new direction” in its Healthideas contract was to (temporarily) not involve two specific subcontractors. After their interviews with Ms. Kislock and Mr. Sidhu in September 2013, the contractors had their data suspensions removed and were once again able to apply for and work on ministry service contracts and to use ministry data. and meeting the ministry’s work demands – which were high to “make up for lost time” – was exhausting. Moreover, the Resonate contract was identified as a probIn developing the notice of intent to direct-award the lem not because of any issues with the contract itself but contract to Team Meta, Ms. Kislock maintained that the because the ministry had unsupported suspicions about cancellation of the Resonate contract was to support a two of the subcontractors. These unsupported suspicions different direction. She said to the ministry’s Communica- also led to the suspension of data for the two contractors. tions Manager, “we cancelled Resonate cause we were As we have stated in previous chapters, the ministry’s going in a different direction. That different direction was decisions to suspend data access without any evidence building internal capacity. – this is our 2nd contract with of data misuse, was arbitrary. team meta.” However, she also stated that the “cancel- For Resonate’s director, the Healthideas contract had been lation of resonate had nothing to do with the investiga- the bulk of his work. He was not otherwise employed as tion. It was frozen because of the investigation but the some of the other contractors were, for instance, emcancellation had nothing to do with it.” She also stated ployees of the Therapeutics Initiative at UBC. Resonate’s that “the Resonate contract was frozen by the Ministry director told us that he and the president used their own at the direction of OCG.” The IU did provide advice as funds to keep the company afloat after their Healthideas set out above. However, it did not direct the ministry to contract was terminated. He said that the company almost freeze the contract. Rather, it advised the ministry that went under and he put his own personal losses at around decisions about the course of action to be taken were up $100,000. He also explained that the work of rebuilding to the Ministry of Health. Resonate, including hiring and training a lot of personnel, The RFP for the Healthideas contract went out in late 2013. Resonate bid on the RFP and won the competition. Work under the new contract started in early 2014. 12.4.1.1  Analysis: Termination of Resonate Contract Given the timing of the termination decision, drawing any conclusion is difficult other than the decision was directly related to the investigation into the two contractors. It was a member of the investigation team who initiated communication with legal counsel about the possible cancellation of the contract. After terminating the Resonate contract, the ministry continued to use contracted services to build and support its Healthideas data warehouse. It signed a short-term contract with Team Meta and, once the investigation was complete, it accepted Resonate’s proposal for a new contract. 12.4.2  Contract with Quantum Analytics Mr. Mark Isaacs, through his company Quantum Analytics, had a longstanding contract with the ministry to develop and maintain an information tool called Quantum Analyzer, which included built-in analytics tools to display, graph, compare and download health information. The software was created to give Ministry of Health employees the ability to review historical data to inform decision making. The information in the QA software was all summary information and not personally identifiable. Services that Mr. Isaacs performed under the contract included acquiring and updating data and metadata for the QA software data library; installing the software on ministry computers and handling technical issues with software functionality; training staff in use; and working with the QA software steering committee to identify new data elements and develop screens to display data. With permission of the ministry, some of the data in the data library was made available to the health authorities. 267 268 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS Mr. Isaacs was planning to implement a new data analysis tool to the QA software that would offer graphing features the current program did not offer. He needed some test data to show how the new tool worked. As we described in Chapter 10, it was through this request that Mr. Isaacs was an innocent and accidental recipient of personally identifiable data in the first incident described in the report of the Office of the Information and Privacy Commissioner (OIPC). As we also described in Chapter 10, Mr. Isaacs immediately returned the personally identifiable data to the ministry employee. although it was the contract itself that provided authorization to receive person-level data. He found the process bewildering, as the events had happened three months prior, and was only able to figure out what happened after he went home and reviewed the emails himself. He said he felt “like a deer in the headlights.” According to Mr. Isaacs, the lead investigator told him at the end of the interview that the next step would entail lawyers drafting some papers for him to sign. He welcomed this because he thought it would allow him to see how they had interpreted what he said. When he returned On September 17, 2012, the lead investigator emailed Mr. home, he organized his own materials and forwarded them Isaacs’ contract manager and appended some communi- to the contract manager. Mr. Isaacs received the following cations between Mr. Ramsay Hamdi (a Ministry of Health email late that day: employee) and Mr. Isaacs. She asked the contract manager Following our telephone conversation this morto review the communications, which did not include the ning, this email is to notify you that the Minbreach information, and to “get back to me on if you are istry has suspended the QA contract while it is aware of this, is it appropriate, and are you aware of Ramreviewed under the current data access review say working on this.” The contract manager responded process. Many contracts within the Ministry are that “the QA contract required Mark to get individual recunder similar suspension while under review, and ord level data (without personal identifiers).” However, she the suspension does not imply any wrong doing. wrote that she was unaware of this particular project. On Please do not complete any work on the contract the same day, the lead investigator discovered the emails deliverables while it is being reviewed. Your related to the privacy breach. cooperation and detailed documentation should The contract manager asked Mr. Isaacs to meet with her help the review proceed at a timely pace. on September 18, 2012, about an issue concerning the QA contract. He was not told that he was under investigation Mr. Isaacs’ never heard from the investigators again. or that the ministry had any concerns. When he showed up Both he and his wife were interviewed by the team on for the meeting, the lead investigator and another member September 18, 2012. They were both shaken by the interof the Ministry of Health investigation team met him with views and, given the September 6, 2012, announcement the contract manager. The contract manager promptly left, that the Ministry of Health had contacted the RCMP, worried that they would be the subjects of a criminal leaving the investigators with Mr. Isaacs. Mr. Isaacs told us that the meeting “got strange very investigation. quickly.” The lead investigator told him that this interview On September 19, 2012, Heather Davidson, Assistant Depwas part of a well-publicized investigation going on at the uty Minister of the Planning and Innovation Division in ministry. She told him his name appeared in some corres- the Ministry of Health, asked Associate Deputy Minister pondence with Mr. Hamdi and that she wanted to discuss Sandra Carroll to include the QA contract in the review the whereabouts of a flash drive. He told us he tried to of research contracts that was underway, understanding provide some context to the work he was doing, but the that the contract would remain suspended during the time lead investigator dismissed him, saying she “knows all of the review. Dr. Davidson told us that she understood that.” She asked if the contract manager knew about Mr. that an expedited review was underway by the ministry Isaacs’ planned new tool, to which Mr. Isaacs said that on certain contracts. she did not. He believed the lead investigator took this to mean that he did not have authorization to receive data, CHAPTER 12 In the meantime, Mr. Isaacs hoped that the matter would be resolved quickly. He thought it should only take about a week, but it took much longer. The ministry did not respond to this letter or the offer. Despite the suspension of the Quantum Analytics contract, the ministry did not take any steps to stop using the QA When we spoke with the HSS lawyer, he said that he software. Employees continued to use and access the prounderstood that the QA contract was caught up in the in- gram as they always had. On November 26, 2012, counsel vestigation because Mr. Isaacs was involved in one of the for Quantum Analytics sent a further letter regarding the privacy breaches that became the subject of the OIPC’s suspension of the Quantum Analytics contract, noting that investigation and report. The HSS lawyer also told us there was no provision in the contract authorizing a susthat he understood that the ministry was winding down pension, and that in spite of the suspension, the ministry the use of the QA software in spite of the investigation, continued to use the QA software. because it had a different system it was going to use. On November 27, 2012, Dr. Davidson, the Assistant Deputy On November 5, 2012, as part of the ministry’s efforts to contain any breach and to demonstrate to the OIPC that it was taking steps to contain the privacy breaches, the ministry sent a letter to Mr. Isaacs demanding the return of any ministry data in his possession. The letter did not particularize the data that the ministry was seeking from Mr. Isaacs and made no mention of the flash drive that was at issue in one of the alleged privacy breaches. Minister responsible for the Quantum Analytics contract, contacted Ms. Kislock about the letter from Mr. Isaacs’ counsel and stated, “we need to either ‘un-suspend’ or cancel contract.” In response, Ms. Kislock recommended to Dr. Davidson that the ministry terminate the contract. Ms. Kislock also forwarded this email to the lead investigator. We were left unclear on what basis this recommendation was made. However, the contract was not Mr. Isaacs told us that upon receiving the letter he won- cancelled at that time. dered how he could prove, to the ministry’s satisfaction, On January 12, 2013, one of the Ministry of Health inthat he didn’t have any data. He was worried enough that vestigators wrote to Dr. Davidson to inform her that the he sought legal advice. When he contacted his contract Quantum Analytics contract had been suspended pending manager, she was unaware of the letter. an investigation by the Office of the Comptroller General.13 On November 13, 2012, counsel for Quantum Analytics and Mr. Isaacs had heard that the Office of the Comptroller Mr. Isaacs wrote to the Ministry of Health in response to General may be getting involved but they never contacted the ministry data demand letter, noting that the language him. in the demand was broad and appeared to capture min- The HSS lawyer gave advice about the Blue Thorn contract istry information that Quantum Analytics was authorized and the Quantum Analytics contract. He said his advice reto possess under its contract, and noting that the ministry lated to how to keep the work of the Ministry going while provided information to Quantum Analytics “knowingly the investigation was underway and while the Ministry and willingly.” The letter also noted that, to the extent had suspended some people’s access to data. the demand related to the flash drive and unencrypted On January 14, 2013, two HSS lawyers had a phone call PHN information, Mr. Isaacs had provided an explanation with a member of the investigation team and other repreabout that to the ministry in an interview in September sentatives of the Ministry of Health about moving forward 2012, and provided the ministry with related emails. The with contracts affected by the ministry’s investigation. letter contained an offer to allow the ministry to have a On January 15, 2013, the HSS lawyer sent an email to computer forensic firm access Quantum Analytics’ sys- Dr. Davidson, the lead investigator and another member tems to satisfy itself that no potentially unencrypted PHNs of the investigation team outlining five options and the remained. 13 The assertion that the OCG’s IU team was investigating Quantum Analytics was inaccurate because the IU never began an audit or any other type of analysis of the Quantum Analytics or related contracts as part of its review. However, the IU had captured the physical Quantum Analytics file in September 2012 when it picked up all the contracts that were subject to the Ministry of Health review. 269 270 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS attendant pros and cons of each approach that had been discussed on the call, as summarized below: 1. Continue with existing contracts and arrange for persons under investigation to not have access to data. 2. Direct award contracts to persons capable of doing the work who are not under investigation, in a manner which could be justified under the direct award guidelines 3. Move the work in-house. 4. Cease carrying out the work until the investigation is complete. 5. Procure new agreements by way of Request for Proposals. The five options outlined above were included in a Ministry of Health briefing note on how to deal with the Quantum Analytics contract. On January 15, 2013, the HSS lawyer told the HSS Supervising Solicitor that the Ministry of Health had instructed him to refrain from sending a further letter to Quantum Analytics for the time being. He noted that the ministry was considering whether to reinstate the contract. He also noted that “Heather Davidson’s group feels that they [Quantum Analytics] were without blame on this and should be reinstated and for work to recommence. MOH is to confirm this after they consider the recommendation.” On January 18, 2013, the HSS lawyers provided some further legal advice to a member of the investigation team about the risks associated with direct-awarding contracts. The HSS lawyer gave evidence that he did not provide advice on whether the ministry should terminate the Quantum Analytics contracts. He said that he may have given advice as to how to implement the terminations once the ministry had decided to adopt that course of action. On January 25, 2013, Dr. Davidson asked the contract manager to provide information about the impact on the ministry of not continuing with the QA contract. The fourpage document the contract manager responded with recommended reinstating the contract and explained why it was necessary. The document stated: Why this contract is necessary? ƒƒThe Ministry needs one location where staff can access “official” numbers. This is especially important in the preparation, verification and sign-off of information in public-release documents. ƒƒThe Ministry has extensive data holdings in its administrative databases, but because of the complexity of the databases and the programming skills required to analyse the data, only a small number of trained analysts have access to these datasets. ƒƒThere is a separate need for easy access to key indicators/statistics data for a wide range of purposes such as preparing presentations, speaking notes, briefing notes, issue notes, and other communication pieces for the Minister, ministry executive, Government Communications and Public Engagement staff, and responses to media and public enquiries; … ƒƒ Need for one location for “official” numbers: … ƒƒ Quantum AnalyzerTM provides Ministry staff with “instant” access to a common data library of summary level, consistent, verified, up-to-date, documented data / information / indicators from Ministry databases and other data sources. QA is also a desktop analysis tool that can display information and meta data, and assist with analysis of information such as generating tables, charts, maps, and data extracts. ƒƒThe Ministry cannot easily replace the benefits gained from QA. QA contains over 170 different tables which display over 500 different categories of multiple year data from multiple sources. Plus, the built in analysis toolset means that staff can easily locate and analyse the desired statistic, supported by the necessary metadata and documentation … The document also outlined several risks of not reinstating the QA contract at that time, which included identifying CHAPTER 12 three major activities in the next six months that would have relied heavily on the QA software. It also outlined strategies to mitigate the risks that might be associated with providing ministry data to Mr. Isaacs. also acknowledged that the ministry had continued to use QA software in spite of the ministry’s earlier suspension of the services under the contract. On about February 7, 2013, the Ministry of Health contacted the OCG to ask whether it had any concerns with the QA contract or contractor, and to say that the ministry would like to reinstate the contract. One of the IU’s investigators provided a briefing by email to the IU manager explaining that the contract was outside PSD, did not appear to have persons of interest on the file, and was not included in the IU’s investigation scope. However, she then described a discussion with two of the Ministry of Health investigators about data security concerns related to the contract. She advised the IU manager that while it was not in the group’s scope, concerned that [the lead investigator] was – that the investigators were misinterpreting what Mark had access to, and how he did his work. And I had raised that with [the lead investigator], and had not had any response from her. And so it was still an outstanding question to me. And so Elaine knew that, and so she called me in so that I could explain that to them. When we spoke with Dr. Davidson, she said the deciAlthough the contract manager recommended reinstate- sion not to renew the QA contract was driven by the ment of the QA contract because of its unique capabilities, investigators: we also heard from other witnesses that the QA software Elaine [McKnight] called me to come into the was becoming out of date and that other tools coming to meeting when they were talking about the Quanmarket were competitive. tum Analyzer, because she knew that I had been … the ministry needs to consider the contract risks, particularly the credibility of the contractor, the value for money provided by the contract, the business model for providing this information to the health sector, and the fact that the contractor obtained unauthorized data and that data remains unaccounted for. And basically they said, well, it says here, and they showed me the report that had been prepared by the investigators, which still said that he had inappropriate access to personal information. Which I had questioned that. That, first of all, yes, he should have not had the PHNs, but he raised that himself. But the personal level information was actually what he needed to do his job. He couldn’t do the work he did for us without having it. So that was not inappropriate. She further added, “an audit of this contract and related contracts is warranted to assess the business model, value for money, contract management and data access.” And I had raised that, but and they basically said, “Well, we have to go by what the investigator said.” And I was quite furious. It is not clear on what basis the investigator made these assertions, other than that she had discussions with the Ministry of Health investigation team. Dr. Davidson was not able to identify the specific report that the investigators had shown her; she had not been given a copy. She said that after this meeting, she decided that the only option was to terminate the contract: On February 18, 2013, Dr. Davidson wrote to the HSS lawyer noting that she did not think the Ministry of Health needed to proceed with a forensic audit of Quantum Analytics’ systems (as offered in the November letter from Mr. Isaac’s counsel). On February 21, 2013, just over five months after the contract was suspended, the HSS lawyer wrote a letter to Mr. Isaacs’ counsel confirming that the ministry had decided to terminate its contract with Quantum Analytics. The letter It was not going to be expedited, that was clear, it was going to take a long time, and because Mark’s lawyer, you know, had raised the question of we really had no authority to suspend it in the first place. That really the only option we had was to keep it going or terminate it. And given I couldn’t unsuspend it, and it didn’t look like it 271 272 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS was going to happen for a long time, the only alternative was to terminate it. The letter enclosed a form of declaration that Mr. Isaacs would execute on a “without prejudice” basis. On April 2, 2013, counsel for Mr. Isaacs wrote a lengthy letter to the Ministry of Health and raised the following issues: On April 8, 2013, the lead investigator, three HSS lawyers and Dr. Davidson met to discuss issues relating to Mr. Isaacs and Quantum Analytics. The HSS Supervising Solicitor, in notes taken at the meeting, said of a reference to a comment made by Dr. Davidson: “Lyr. correct re[lead investigator] not understanding fully the nature of data [Mr. Isaacs] was allowed to have.” Quantum Analytics was still awaiting confirmation that the Quantum Analyzer data library and the associated software and files were removed from the ministry the ministry had no right to “suspend” the contract, and Quantum Analytics should be compensated for its lost revenues during the suspension, in addition to being compensated for the ministry’s continued use of the data library and software that although the contract had an arbitration clause, Quantum Analytics was considering bringing civil proceedings against the ministry because there were “a number of aspects to the manner in which Quantum Analytics and Mr. Isaacs have been treated by the Ministry since September 2012 which may be actionable” when Mr. Isaacs went to the ministry on September 18, 2012, he understood that he was meeting to discuss the contract, but “he was instead subjected to lengthy questioning” about the flash drive “Mr. Isaacs was extremely upset by what he considered to be an ambush-style tactic, and by the fact [the investigators] seemed to have started the interrogation under the assumption that he was ‘guilty’ of having improperly acquired data from a Ministry employee” The lead investigator had told Mr. Isaacs a lawyer would draw up a document for his signature outlining his dealings with the employee, but no such document was ever provided to him Mr. Isaacs would not sign the declaration provided by the ministry because it was too broad and would require him to return the emails between himself and the ministry about the flash drive, and he needed that information to protect himself in light of the ongoing investigations; and those emails were just as much Mr. Isaacs’ property as the ministry’s The notes also indicate that Dr. Davidson made statements indicating that they “need to take Quantum Analyzer off min. databanks” and that Mr. Isaacs was “professional and cooperative” in finishing up the transition work, and that although the ministry would not necessarily renew the Quantum Analytics contract, Mr. Isaacs has “other skill and assets” that might “be useful to MOH.” A comment attributed to the lead investigator suggested that the investigation of Mr. Isaacs and Quantum Analytics had not yet been completed: “Priority list of Phase 2. Won’t be prob. until the end of June.” On May 16, 2013, an HSS lawyer wrote to the lead investigator asking whether the ministry had compensated Mr. Isaacs for the continued use of the QA software and, if not, asking for instructions. The lawyer also sought confirmation that Mr. Isaacs was no longer under investigation, noting that “the longer Mr. Isaacs is kept in a state of uncertainty, the higher the legal risk to the province.” The lawyer also noted a reminder letter from Mr. Isaacs’ counsel had come because the ministry had not yet sent a reply to that counsel’s letter of April 2, 2013. The HSS lawyer wrote, “we are concerned that if a response is not provided as soon as possible, there is a high risk the government may be faced with another lawsuit.” The lead investigator told us that she had referred the issue to Ms. Kislock. On May 22, 2013, an HSS lawyer sent an email to the Executive Director responsible for the Quantum Analytics contract, noting that the lead investigator had indicated that the Executive Director could advise whether compensation had been provided to Mr. Isaacs or whether arrangements to do so were in place. The Executive Director replied that the Ministry of Health had made two payments to Mr. Isaacs since September 2012. CHAPTER 12 On June 24, 2013, the HSS lawyer wrote to counsel for Between August and September 2013, there was no furMr. Isaacs, apologizing for the late response and explain- ther correspondence between the ministry and Mr. Isaacs’ ing the ministry’s understanding that Quantum Analytics lawyer. had licensed the use of its tool through direct agreement 12.4.2.1  Settlement of Quantum Analytics Contract with the health authorities, and that Mr. Isaacs would Dispute need to contact the health authorities directly. The letter In October 2013, Mr. Isaacs was attending his wife’s long noted that the investigation was ongoing, and that the service award ceremony and happened to see the new ministry would not consider further work with Mr. Isaacs Deputy Minister, Stephen Brown, who he knew from preand Quantum Analytics until the investigation was comvious work at the Ministry of Health. Mr. Isaacs told us pleted and its findings reviewed. The letter noted that the that while he did not make a habit of “ambushing” people, ministry may consider compensating Quantum Analytics he spoke to Dr. Brown about his lingering issues with the for the use of its tool from the date of its last invoice until ministry and the fact that the case had never been settled. the date of its removal from the ministry’s system, and suggested that Mr. Isaacs contact the ministry’s contract Dr. Brown told us that earlier he learned that Mr. Isaacs manager directly to see if a mutually agreeable figure and his wife had been traumatized by the process. He had spoken to her and she explained that Mr. Isaacs was could be reached. under tremendous stress, worrying that the RCMP might In the same letter, counsel clarified that the demand for kick down the door to the home based on the ministry’s return of all government information related only to that public comments about an RCMP investigation. Dr. Brown received by Mr. Isaacs or his company from the Ministry told us that he had reviewed the facts and that it “looked of Health under the contract. The letter requested that Mr. as though [Mr. Isaacs] had done everything appropriate, Isaacs sign a declaration, enclosed in the letter, confirming it was the ministry that made the screw-up on including he did not have that information in his possession. the PHNs, and he had addressed that issue immediately Mr. Isaacs and his counsel reviewed the letter. They wrote straight away.” Dr. Brown recalled telling Mr. Isaacs, “I’m their own declaration, signed it and sent it to the ministry really sorry about the stress you’re under. Come and talk on July 17, 2013. The ministry accepted this without com- to me. Let’s talk this through.” plaint. Mr. Isaacs then began the process of monitoring the Dr. Brown learned that there was some question about steps the ministry had to take to shut down the contract. whether the ministry would continue to use the QA softOn July 11, 2013, Mr. Isaacs wrote to the Ministry of ware. He told us that this did not have anything to do with Health indicating that the ministry’s assertion that he any of the allegations, but was a business decision. He needed to contact the heath authorities about the use of wanted the matter settled and passed it on to Mr. Sidhu the QA software was not correct. He wrote that Quantum for the calculations to be completed. Analytics had extended the ministry’s licence to include In late October 2013, Mr. Sidhu approached the HSS five users in each health authority who could access a Supervising Solicitor, seeking her assistance in reaching particular data library. He said that the data library was a settlement with Mr. Isaacs. She wrote to the employpart of the ministry’s contract, and when the ministry terment lawyer to see whether there were any issues with minated its contract with Quantum Analytics, the ministry her working with Mr. Sidhu to achieve a settlement of was obliged to contact the health authorities to tell them the matter in light of the other outstanding litigation that that the QA software was no longer available to them. the Ministry of Health was engaged in. The employment On July 30, 2013, Dr. Davidson wrote to the HSS lawyer lawyer replied, noting that the Deputy Minister of Health indicating that she was unaware of the arrangement de- had indicated on September 30, 2013, that he was interscribed above, and saying that the ministry would notify ested in settling the litigation with Dr. W. Warburton, and the affected users. that the Ministry of Health needed to be careful not to diminish its bargaining power, “assuming that all of these 273 274 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS individuals are talking to each other.” The employment lawyer indicated that she would like further information about the proposed settlement, and would then consult with outside counsel as necessary. to facilitate the opportunity for Mr. Isaacs to meet with Ms. Davidson to discuss the prospect of re-establishing a contract with Quantum Analytics. Mr. Sidhu confirmed he had spoken with Dr. Davidson and she was willing to meet with Mr. Isaacs to give him “the opportunity to On October 31, 2013, the employment lawyer and the HSS Supervising Solicitor had a conference call with Mr. Sid- make [his] case.” The settlement agreement was signed hu to discuss a possible settlement with Mr. Isaacs and on November 25, 2013. Quantum Analytics. Following the call, the employment It appears that the advice discussed between lawyers lawyer wrote to the HSS Supervising Solicitor to summar- on November 1, 2013, was not communicated to Mr. Sidize the advice that they gave Mr. Sidhu that day, and to hu, and Mr. Sidhu settled the matter directly with Mr. recommend next steps prior to Mr. Sidhu’s meeting with Isaacs without that advice. Dr. Brown told us that he was aware of the settlement with Mr. Isaacs, that Mr. Sidhu Mr. Isaacs scheduled for the following week: had walked him through the calculation, and that he was It is my understanding that the MOH believes that comfortable with the settlement. Mark Isaacs did nothing wrong and was improperly lumped into the MOH’s investigation with other researchers. I don’t have any information to suggest that the MOH had a proper basis to suspend its contract with Mr. Isaacs, however, it would be helpful if [an HSS lawyer] could confirm whether there is any reason why it should be entering into a settlement agreement. The employment lawyer went on to outline that she could draft a settlement offer between the Province of British Columbia and Mr. Isaacs that could include compensation for the time during which the contract was suspended and for legal fees, as well as an apology under the Apology Act and a release. On November 1, 2013, the employment lawyer wrote to the HSS Supervising Solicitor recounting a discussion that she had with outside counsel that day regarding the prospective settlement. She wrote that outside counsel thought that the Ministry of Health should not apologize to Mr. Isaacs, “as this may prejudice the bargaining position of the MOH vis-à-vis the other cases it is facing” and that Mr. Sidhu should have “a communication strategy along the same lines of what was communicated in the TI media release” that was issued in October 2013. On November 5, 2013, Mr. Sidhu wrote to the HSS lawyer advising that the Ministry of Health had agreed to a settlement with Mr. Isaacs, and asking the HSS lawyer to contact Mr. Isaacs’ lawyer with respect to the release. As part of the settlement, the Ministry of Health agreed Although he agreed to it, the settlement did not compensate Mr. Isaacs for the time that remained on the contract when it was cancelled. Because the QA software was specially designed for the Ministry of Health, he effectively mothballed it once the settlement occurred. The HSS lawyer said that although he did not provide advice as to the appropriateness of the terms of the settlement, he gave the following evidence about the advice he gave to Dr. Davidson in February 2013 regarding the approach to settlement: I didn’t think that Mark Isaacs had been fairly treated by the ministry in this, and on the information side, information handling side, I don’t think he ever did anything wrong, from anything I ever saw, he was clean as a whistle. I mean, if he got nailed, all the rest of us are doomed. So that – that’s one thing. … it turned out … that despite the fact that supposedly, even after things were terminated, they kept using the Quantum Analyzer, which you sort of think to yourself, oh geez, you know … So … that came a little later when I discovered that they were still using it, and I said, well wait a minute, you know – here’s a guy that’s basically done nothing wrong, and on top of it we’re using his – his product for free, and so then we had a number of discussions to try to make things right for the guy, which would mean, you know, CHAPTER 12 reinstating him, mitigating, paying him for the use of the – of the Quantum Analyzer, you know. This is one where I felt quite strongly that we should do the right thing by this guy, and I think we should do the right thing for everybody, but in this case he never did anything wrong, but we should certainly step up, and – and pay for whatever we – we had used, and – and protect his reputation. suggest that the ministry did not value the service that Mr. Isaacs provided. His actions in safeguarding ministry data when he received the flash drive demonstrated his reliability. The only reason for the suspension of the QA contract was Mr. Isaacs’ receipt of the flash drive that accidentally contained personal information. It was unreasonable to suspend Mr. Isaacs’ contract – first, because there was no suspension provision in the contract itself, and The Quantum Analyzer software was never used by the second, because there was no evidence that Mr. Isaacs Ministry again. The Ministry created its own way to gen- had done anything wrong with respect to his contract. erate reports, which previously would have been done The ministry’s response was entirely disproportionate and by QA software, and never resumed using the program. the delay in resolving the matter only compounded the Dr. Davidson told us that Mr. Isaacs was encouraged to ministry’s mistake. apply for some contracts, and that “he had actually done 12.4.3  Contract with Blue Thorn Research some contracts for the Ministry.” She went on to say, “he and Analysis Group Inc. had chosen not to apply on one that we had suggested he could apply for and would have been good at because Given the central role Blue Thorn Research and Analysis Group played in the basic functioning of the ministry’s he just felt too traumatized.” Population and Public Health Branch, the suspension of 12.4.2.2  Analysis: Suspension and Termination of its contract on September 13, 2012, abruptly halted the Quantum Analytics Contract epidemiological surveillance and research performed Mr. Isaacs was not treated fairly by the Ministry of Health. within the Branch.14 Through no fault of his own, he inadvertently received The investigation team first turned its attention to Blue personally identifiable administrative health data. Once Thorn as a result of the firm’s relationship with Dr. W. he realized this had occurred he ensured that it was imWarburton. On reviewing Blue Thorn’s contract, the invesmediately and safely returned to the Ministry of Health. tigators also suspected that two public servants were in His contract with the ministry was suspended and both he a conflict of interest given their simultaneous association and his wife were interviewed by the investigation team. with Blue Thorn. These concerns led the investigators to Both were shaken by their experiences. recommend the suspension of both the Blue Thorn conThe ministry did not conduct a reasonable and timely in- tract and data access for its associates. vestigation into Mr. Isaacs’ receipt of the data. Had it The decision to suspend the contract was made by done so, the evidence would have demonstrated that the Assistant Deputy Minister Arlene Paton based on what improper disclosure of data to Mr. Isaacs was due to the she described to us as direction from the lead investigaerror of a ministry employee, and that Mr. Isaacs acted tor and the then-Director of Data Access, Research and entirely appropriately in responding as he did. Stewardship. Ms. Paton explained to us that she was The suspension and eventual termination of the contract told that she needed “to stop the relationship” with Blue created significant financial uncertainty for Mr. Isaacs. Thorn while the investigation proceeded. She understood While there was no guarantee that the ministry would that the concern about Blue Thorn was related to the renew his contract once it was over, the term of the sus- recent public statements made by the Minister of Health pended contract went until December 31, 2014. The obser- about an alleged data breach and related RCMP investivations about alternatives to the QA software were some- gation. While she did not know the reasons behind the what speculative and preliminary. There is no evidence to decision to terminate Ministry of Health employees earlier 14 See Chapter 4 for a description of the public health analysis work carried out by Blue Thorn. 275 276 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS in September, she believed, as did many in the ministry, that the firings related to improper use of ministry data. in chapter 7 of this report, suspending data access based on conjecture or mere suspicion, in the absence of any Ms. Paton understood the situation with Blue Thorn to be evidence, is improper. Additionally, the ministry’s decision sufficiently serious that she had no choice but to act on the to suspend data access first and ask questions much later, recommendations of the investigation team to suspend caused significant harm to Blue Thorn’s associates and the contract to maintain data security while an investi- resulted in the firm ceasing operations. A timely investigation was conducted. Despite this, she believed at the gation could have mitigated these impacts. time that the contract suspension would only be temporary 12.4.3.1  Causes of Concern and hoped it would not take long to restart the work done The Ministry of Health investigation team identified three by the firm. While Ms. Paton did not recall whether the reasons for focusing on the Blue Thorn contract. As we investigators presented her with specific evidence show- describe below, none of these was a reasonable basis on ing that Blue Thorn was engaged in any inappropriate which to suspend the Blue Thorn contract. actions, she recalled them informing her that they had concerns with Dr. W. Warburton’s connections with the 12.4.3.1.1  Relationship with Dr. William Warburton firm, the firm’s data security practices, and the potential We described in Chapter 7 that the investigators turned for a conflict of interest with two Blue Thorn associates. their attention to Dr. William Warburton early in their inNotice of the suspension was provided to Blue Thorn by vestigation in part because of the one dollar contract he email, the wording of which was provided to Ms. Paton held with the ministry for work on atypical antipsychotic by the investigation team. drug research. The investigators then turned their attenBlue Thorn’s contract with the province did not include tion to any other connections he may have had with other any suspension provisions. Rather, the province had the ministry work. In doing so, the investigators discovered Dr. option to terminate the contract at its discretion by giving W. Warburton’s connection with Blue Thorn. the contractor 10 days’ notice. The ministry’s unilateral decision to both suspend the contract without prior notice and allow it to expire without any further payment was contrary to the agreement. The concurrent decision to suspend data access for Blue Thorn associates was made by Assistant Deputy Minister Lindsay Kislock based on what she described to us as the concerns of the investigation team. Ms. Kislock’s decision to both suspend data access restrictions and maintain those restrictions throughout the investigation was made in the absence of any evidence suggesting improper use of data by any Blue Thorn staff. Ms. Kislock explained to us that she neither saw nor required such evidence to initiate or maintain the restrictions. As explained below, Dr. W. Warburton had been included in Blue Thorn’s contract with the ministry in order to accommodate Public Health Agency of Canada (PHAC) requirements for funding the Trajectories Project. This arrangement had been both advocated for and approved by the Ministry of Health, PHAC and Blue Thorn. Through an administrative error, Dr. W. Warburton’s name was not added to the list of key individuals in the ministry’s contract with the research firm. Given the suspicions already held by the investigators concerning him, the funding arrangement with PHAC for the Trajectories Project and the administrative error of not including Dr. W. Warburton’s name in the amended Blue Thorn contract, led the investigators to extend their attention to Blue Thorn itself. While the investigators had concerns with Dr. W. Warbur- 12.4.3.1.2  Alleged Conflicts of Interest ton’s contractual ties to the firm and, subsequently, with As they examined the Blue Thorn contract, the investigapotential conflicts of interest for two of its associates, tors learned that two of the company’s associates were they had no evidence or allegation before them that data also employed by the province. After the investigators was being misused when access was suspended. As such, interviewed the two associates and conducted docuthe decision was made on mere suspicion that data may mentary analysis, the ministry formed the view that both have been at risk and without any preliminary assess- individuals were in a conflict of interest and required Blue ment of whether or not this was the case. As discussed Thorn to remove them from the contract. One of the two CHAPTER 12 associates also had additional disciplinary action taken against her in her role as a public servant. While it was not unreasonable for the Ministry of Health to inquire into whether these employees were in a conflict of interest position (we determined they were not),15 this was a concern that could have been investigated without having to suspend the Blue Thorn contract. 12.4.3.1.3  Data Handling Practices The lead investigator was also concerned about Blue Thorn’s data handling practices related to aggregate, summary-level data. Transcripts of interviews conducted by the lead investigator indicate that she consistently asserted that such data had to be treated in the same manner as personally identifiable data. This would only be correct if the information contained in the data could lead to the identification of an individual, which with aggregate summary level data is typically not the case. draft a memo describing the impacts of the Blue Thorn contract suspension. She then relied on this memo in consulting with other Assistant Deputy Ministers, the Deputy Minister and the internal investigators. This led to the temporary reinstatement of the Blue Thorn contract to allow three of its associates to re-engage on ministry projects for a brief period during the winter of 2012 and spring of 2013. Prior to the contract suspension, Blue Thorn played a key role in provincial flu surveillance. This work informed the ministry about where in the province the flu was most prevalent, where delivery of the flu vaccine was most needed, and when and where the flu may spread or was otherwise likely to appear in the future. At the time of the suspension, the Population Health Surveillance and Epidemiology Branch made clear to the investigators and senior management that public health was at risk if flu surveillance was not restarted quickly. The ministry Neither the ministry’s investigation nor ours found any re-engaged one Blue Thorn associate to continue the flu evidence to suggest that “personally identifiable data” surveillance work he had been doing prior to September (as the term was understood at the time of the investi- 13, 2012. In October 2012, he was provided data access gation) was inappropriately accessed or transmitted by in order to both continue the work and to simultaneously Blue Thorn staff, or that their method of accessing and prepare data reporting tools for the transfer of flu surhandling data was either unsanctioned by the ministry or veillance to the BC Centre for Disease Control (BCCDC). otherwise inappropriate. Ms. Paton confirmed with us that That individual’s work on the project ended in March 2013. despite the concerns initially raised by the investigators, In 2012, British Columbia was a signatory to a national proshe never saw evidence to suggest that Blue Thorn did ject funded by PHAC, designed to track the prevalence and not have adequate security measures in place or that its impacts of neurological disease across Canada. Followstaff ever mishandled data. ing the Blue Thorn contract suspension, project partners Concerns about data handling practices were not, there- from across Canada raised concerns that British Columbia fore, a sufficient basis on which to suspend Blue Thorn’s would be unable to meet its obligations, which would contract. threaten the entire multi-year project and its deliverables. To ensure that the province met its minimum obligations to 12.4.3.2  Continuing Suspension the contract, and to avoid having to return funds already Ms. Paton understood that the investigators’ concerns received from PHAC, the Population Health Surveillance with Blue Thorn were peripheral to the focus of their and Epidemiology Branch re-engaged the services of two broader investigation. She explained that she was told Blue Thorn associates to continue the work they had been to ensure that Blue Thorn did not re-engage in work for the doing before the Blue Thorn contract suspension. Ms. Paministry while the investigation was underway; and that ton explained to us that persuading the investigators, Ms. when the investigators had sufficient time, they would Kislock, and the Deputy Minister to allow this resumption, focus their attention on Blue Thorn. took considerable effort. Ultimately, the limited contract Soon after the suspension, Ms. Paton asked the Popu- resumption allowed British Columbia to meet its minimum lation Health Surveillance and Epidemiology Branch to commitments to the national project without considerable 15 As discussed in section 11.3 of our report. 277 278 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS delay. Nevertheless the national project remained nega- and the contracts specialist that the IU had identified “red tively impacted, the details of which are described in flags” associated with the contract. While the ministry Chapter 17. was not bound to follow the advice of the IU, it chose to By early October 2012, the ministry’s investigators de- maintain the contract suspension while the IU conducted termined that should Blue Thorn agree to remove Dr. W. its investigation with the exception of allowing the two Warburton and the two other employees they believed limited re-engagements permitting flu surveillance and were in a conflict of interest from the contract, it could neurological disease reporting to temporarily resume. It be reinstated. Except for concerns about those potentially appeared that until late November 2012, the ministry inconflicting roles, they did not find any other issues with vestigators believed that the IU would complete its investhe contract itself. First, however, the investigators sought tigation by December 2012. the opinion of the Investigation and Forensic Unit (IU) of the Comptroller General’s office as to whether it would be possible to “unsuspend” the Blue Thorn contract given the IU’s ongoing parallel investigation (which had only just started). The IU Director prepared an Investigation Issue Note dated October 4, 2012, to brief the Comptroller General on the Blue Thorn Contract. As the Issue Note explained, the “Ministry Investigation Team believes that if Blue Thorn signs a waiver that it will not have these three individuals involved in this work, then the work can proceed. We believe that their review is from the perspective of data access and not fiduciary responsibility or contract management.” The Issue Note also explained that the IU has “not had the opportunity to thoroughly examine all the inter-relationships in their investigation and their findings could provide that this contract was also part of a fraud scheme or at a minimum, a serious conflict of interest.” One of the IU investigators told us that despite having no evidence of financial loss, the facts presented to them constituted an unacceptable risk because Dr. W. Warburton was a “party of interest” and was working on the contract. The Issue Note stated that the ministry told them about concerns there was a potential “funding scheme.” What the ministry told the IU about the contract was speculative and based on no evidence. As such, the IU was hindered in its ability to provide informed advice on the contract. As the suspension continued through December 2012, both Ms. Paton and her staff grew increasingly concerned about the impact of the investigation on Blue Thorn associates and on the ministry’s ability to continue the work it was doing prior to the suspension. Ms. Paton explained that throughout the fall and winter of 2012 she was hearing from her staff that: [Blue Thorn associates] who do this great work are all going to go find other jobs and then they are not going to be available to us. And if one of our strategies is to teach our own staff how to do this work and have that capacity built in here and at BCCDC, how do we do that if the people who know how to do this work were to go off and get other jobs? And then of course I heard they couldn’t get other jobs … so I just remember both [the lead investigator] and Lindsay just saying, well, we are going as fast as we can, there is a lot of detailed work having to happen … despite bringing it up with Elaine McKnight as well, my associate deputy, there just didn’t seem to be any way to move anything forward. And then when we finally did finally get … the green light to go ahead with the RFP, we got stalled again because all of a sudden the OCG was investigating the contracts. There was the sense that there were not only privacy breaches and data security issues but potentially financial mismanagement. Relying on the information they received from the min- The HSS lawyer gave some advice around the Blue Thorn istry, the IU advised the ministry around October 9, 2012, contract. He said his advice related to how to keep the that there was too much risk associated with the contract work of the ministry going while the investigation was to reactivate it and that the IU intended to investigate underway and while the ministry had suspended some issues related to Blue Thorn during its investigation. It people’s access to data. As we set out earlier, the lawalso notified Ms. Paton, Mr. Sidhu, the lead investigator yer’s advice was to provide contracting options for the CHAPTER 12 ministry’s consideration. The HSS lawyer gave evidence that he did not provide advice on whether the Ministry of Health should terminate the Blue Thorn contract. He said that he may have given advice as to how to implement the termination once the ministry had decided to adopt that course of action. Ultimately, the Blue Thorn contract expired on March 31, 2013, and was not renewed. 12.4.3.3  Analysis: Suspension and Expiry of Blue Thorn Contract The ministry never explained the reasons for the suspension to Blue Thorn or to the ministry employees who oversaw the firm’s work. The ministry’s investigators said shortly after the contract suspension that the halt would be temporary. Expecting to return to work before long, Blue Thorn associates did not immediately seek employment elsewhere. Although the contract was briefly reinstated so that three Blue Thorn associates could re-engage in work necessary for the ministry to meet its contractual obligations to the federal government and to monitor flu trends during the height of the 2012/2013 flu season, the suspended contract was ultimately allowed to expire. overlooked. This was consistent with the reasons the IU was asked to do its own investigation in the first place. However, it appears clear that at the time the IU advised the ministry about the risks of restarting the Blue Thorn contract, the IU did not have the opportunity to review the contract in detail and it relied on the information it received from the Ministry. This created a circle of reliance in which both the IU and the ministry could point to the information received from the other to justify the steps they took. We saw no evidence that the ministry investigation team conducted a preliminary assessment to determine whether there was enough evidence to warrant the initial or ongoing suspension of the contract. The IU did not ultimately review the Blue Thorn contract in detail as they originally intended. Regardless, the problems for both the ministry decision-makers and the IU arose from the fact that they each relied on the insufficient and speculative information the investigation team provided. Thus, the ability of both the ministry and the IU to effectively carry out their roles was hindered by the quality of the information they had been provided. 12.4.4  Dr. William Warburton’s involvement The ministry’s decision to suspend the Blue Thorn con- with the Ministry of Health tract was made on the recommendations and concerns In this section of the report we discuss Dr. W. Warburton’s expressed to senior management by the investigation involvement with the Ministry of Health, including the team. These concerns were not supported by any evidence nature of the health research he was conducting and his of wrongdoing. While Ms. Paton made the decision to contract termination. As we set out in chapters 5 of our suspend the contract, at the same time she also warned report Dr. W. Warburton’s one dollar contract with the senior management of the potential impacts of an ex- Ministry was identified in the complaint to the Auditor tended contract suspension and she repeatedly sought an General. As a result, Dr. W. Warburton’s data was susearly resolution of the issue. It appears little consideration pended on June 11, 2012 and his contract terminated on was given to those warnings until the summer of 2013. July 16, 2012. By that time the ministry’s epidemiological surveillance objectives were adversely affected and Blue Thorn had 12.4.4.1  Contract Termination In a letter dated July 16, 2012, the ministry terminated Dr. stopped functioning. W. Warburton’s contract to conduct research on atypical The Ministry of Health’s reliance on the IU’s representaanti-psychotic drugs for an unspecified “failure to perform tion that it was intending to investigate Blue Thorn and on certain obligations under the contract including, but not the IU’s recommendation to maintain the suspension was restricted to, improper access to provincial data.” The not wholly unreasonable given that the ministry expected letter was signed by an acting executive director of Prithe IU to complete its review by the end of December 2012. mary Health Care and Specialist Services Branch on behalf The ministry assumed the IU was well placed to identify of the Assistant Deputy Minister. At the same time, his financial management issues that the ministry may have access to provincial data and to the ministry’s facilities 279 280 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS were also terminated (his data access for this project was earlier suspended on June 11, 2012). This ended his research work for government, and impacted not only Dr. W. Warburton but also the physician with whom he was doing the atypical antipsychotics work, other research known as the Trajectories Project and, two months later, the contract between the ministry and Blue Thorn Research and Analytics Group Inc. The termination of Dr. W. Warburton’s contract meant that his work was never completed and thus his results were never available to the ministry to inform policy making.16 “full understanding of the impact of these medications on patient outcomes” so that physicians could be better educated and informed about them. Similarly, the ministry’s Primary Health Care Division thought it essential to respond to physicians’ and patients’ concerns.18 Before the investigation, Dr. W. Warburton was involved in research prompted by the General Practice Services Committee (GPSC), a committee of representatives from the British Columbia Medical Association (now Doctors of BC), the Ministry of Health and the health authorities.17 The GPSC is aimed at strengthening and supporting the practice of family medicine in the province. Through the committee process, issues of particular concern to family physicians are brought to the attention of the Ministry of Health. physician at BC Children’s Hospital, which had received funding from the Provincial Health Services Authority (PHSA), for research pertaining to the impacts of atypical anti-psychotic drugs on children’s health outcomes. Dr. W. Warburton would, therefore, already be paid with the PHSA funding. Although the contract did not provide for additional payment by the ministry, it did set out the deliverables that Dr. W. Warburton was required to produce for the ministry and established the mechanism through which he could then access the data necessary for his work. There was, and still is, no policy or legal reason preventing the ministry from signing a contract for this amount. Dr. W. Warburton remained bound by all of the provisions of the contract, regardless of the amount he was paid. The contract was a good deal for the province The ministry did not have the expertise to conduct the necessary “complex and sophisticated data analyses” using its existing administrative health databases. Dr. W. Warburton was available, willing to conduct this work, and was not seeking reimbursement; rather, he had agreed to do the work for the contract price of one dollar. To do the work, he required access to ministry administrative 12.4.4.2  Atypical Antipsychotics Contract: History health databases that required him to become a ministry and Purpose Dr. W. Warburton has significant experience and expertise contractor and have access to a workspace at the ministry. in using large administrative health datasets to conduct It was intended that Dr. W. Warburton would work with social and health research. His research has focused pri- members of the Pharmaceutical Services Division who had 19 marily on issues related to the health and well-being of a “business interest in the outcome of these analyses.” children in care, but his skills in statistical analysis of dat- The Ministry of Health’s then-Chief Administrative Officer, asets have lent themselves to a wide variety of projects. Stephen Brown, approved the contract on the basis that Among many other things, he has done work for the Rep- it would inform the work of the GPSC, the Primary Health resentative for Children and Youth, the Provincial Health Care Branch, the administration of PharmaCare and menOfficer, and the Human Early Learning Partnership at UBC. tal health and addiction initiatives. He is formerly the Director of Research at what is now Dr. W. Warburton was willing to conduct this work for one the Ministry of Social Development and Social Innovation. dollar because he was already planning to work with a In 2010, the GPSC heard concerns from these doctors about the use of atypical antipsychotic medications, and patients had “complained to the Ministry about weight gain, ill health, and poor quality of life following use of these medications.” The GPSC wanted to develop a 16 These impacts are described in greater detail in Chapter 17. 17 Further information about the GPSC can be found at . 18 Department of Primary Health Care, Ministry of Health, “Memorandum Re: Contract for Dr. Bill Warburton,” 12 May 2010. 19 Department of Primary Health Care, Ministry of Health, “Memorandum Re: Contract for Dr. Bill Warburton,” 12 May 2010. CHAPTER 12 as it allowed work to be done on an important issue at minimal cost to the ministry, and in conjunction with work already being funded by the PHSA. 1. Identifying individuals treated with an antipsychotic Despite this, certain employees including the complainant and others in Data Access, Research and Stewardship questioned whether the contract was appropriate considering the nominal dollar figure. 3. Producing graphs and tables of the trends in the alternative treatments 2. Identifying comparison groups of individuals treated with alternative therapies including antidepressants 4. Applying to, and linking health data, to ICBC and to the Ministry of Education database The first contract, signed on August 9, 2010, initially ran from July 19, 2010, until March 31, 2011, but was subse- 5. Developing estimates of the impact of atypical antipsychotics and alternative therapies on health outcomes quently amended to end on September 30, 2011. A second including diabetes, mortality, educational attainment, amendment was supposed to extend the contract until hospitalization and use of the health care system21 March 31, 2012, but due to an administrative error, this was not done, so a second separate contract was signed During the second contract phase the parties used difon April 4, 2012, with a term from May 15, 2012, to March ferent provisions around intellectual property rights and publishing from those contained in the first contract in 31, 2013. The first contract stipulated that the province owned all order to bring them in line with their mutual goals. intellectual property produced by Dr. W. Warburton under the contract. However, the ministry had made it clear to Dr. W. Warburton that it wanted and expected him to publish the results of his analysis. Publishing such research in peer-reviewed journals was consistent with the ministry’s goals, and allowed it to demonstrate that any resulting policy decisions had a clear basis in scientific evidence. As such, the first contract did not fully represent the goals of the parties. The first contract required Dr. W. Warburton to “conduct complex data analyses on the impact of atypical anti-psychotic medications on patient outcomes” and provide the ministry with the results. He was required to conduct these analyses at the Ministry of Health building. As is standard in such contracts, he was required to maintain confidentiality over any personal information that came into his possession as a result of his work.20 It took more than seven months for Dr. W. Warburton to obtain access to some of the raw data he needed to do this work. 12.4.4.3  ICBC Research Agreement In June 2011, as part of his research under the atypical anti-psychotic drugs contract, Dr. W. Warburton also entered into a research agreement with ICBC to obtain height and weight data. He intended to link this with Ministry of Health data for the atypical antipsychotics research. Adding the height and weight data would help Dr. W. Warburton and his research collaborators to better estimate health outcomes (such as weight gain) over time for individuals who were taking these drugs. By entering into the ICBC research agreement, Dr. W. Warburton formalized the mechanism under which he would obtain this data. It is clear in the records that Dr. W. Warburton’s plan to work with ICBC data was supported by both the ministry and ICBC. Employees from the program area (including the then-Executive Director and Assistant Deputy Minister responsible for the Primary Care Branch) and the ministry’s Data Access, Research and Stewardship section knew of and approved of Dr. W. Warburton’s The second contract, signed on April 4, 2012, contained intent to enter into the research agreement with ICBC. further deliverables related to atypical antipsychotics. It Moreover, ICBC was also very supportive of linking ICBC required Dr. W. Warburton to “conduct a thorough sta- data to administrative health data. No linked data had tistical analysis of the risks and benefits associated with been used by the time Dr. W. Warburton’s contract was terminated. atypical antipsychotics” by: 20 Ministry of Health, General Service Agreement 2011-212. 21 Ministry of Health, General Service Agreement 2011-212, amendment 3. 281 282 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS With the support of the Director of Information and Pro12.4.4.4 The Trajectories Project Given his extensive experience in complex data analysis gram Support and the Population Health Surveillance and for health research, it is not surprising that Dr. W. Warbur- Epidemiology team, Dr. W. Warburton approached Blue ton was involved in other projects as well as the atypical Thorn’s principal operator in late January 2012 with a proposal for Dr. W. Warburton to join the firm. The proposal anti-psychotic drugs research. did not impact the work Blue Thorn was doing for the In the fall of 2011, a Director from the ministry’s Populaministry. Blue Thorn’s principal operator saw it as a means tion and Public Health Branch and a senior epidemiolofor the province to secure federal funding for a project gist from the Provincial Health Services Authority (PHSA) that PHAC supported and it was designed to serve a valudiscussed a proposed project with Dr. W. Warburton to able public purpose. On this basis, Blue Thorn’s principal identify health trends in early childhood that statistically operator agreed to amend Blue Thorn’s existing contract correlated with academic performance in later life. The with the ministry to include Dr. W. Warburton and the Trajectories Project, as it would later be known, sought Trajectories Project. This amendment subsequently went to link existing administrative health, education and ICBC through all the necessary approvals within the ministry. data to conduct a retrospective longitudinal study of the No pre-existing Blue Thorn associate benefited directly health and well-being of young British Columbians as they from the amendment. progressed from infancy through high school graduation. It would do this by using more than 20 years of existing ad- The Blue Thorn contract was near expiry when the amendministrative health data. The project was motivated by the ment to accommodate the Trajectories Project was apidea that if it was possible to identify health interventions proved. As Blue Thorn was successful in securing a conin early life that correlated with an increased likelihood of tract extension, funding for the Trajectories project was graduation, it may be possible for government to target included within Blue Thorn’s contract renewal proposal, which was approved by the ministry on March 27, 2012. its efforts on such early interventions. Dr. W. Warburton and his consulting company performed The PHSA agreed to provide some funding to Dr. W. Warover $16,000 worth of work under the PHAC contract. burton for preliminary work on the project. The ministry The work involved writing a project proposal, conducting also agreed to support the project but did not have any a feasibility study and drafting the Privacy Impact Asfunds available in its budget to pay for the work. Therefore, sessments (PIAs) required before data could be accessed with the support of the Ministry of Health’s Director of and the research performed. Although Dr. W. Warburton Information and Program Support, the Population Health performed and invoiced for this work through Blue Thorn Surveillance and Epidemiology Branch and the PHSA, Dr. prior to his contract termination, because of the investiW. Warburton contacted the Public Health Agency of gation the ministry never paid out the funds to Blue Thorn Canada (PHAC) to inquire if federal government funding to pay Dr. W. Warburton. could be made available to support the project. Dr. W. Warburton did not conduct any data analysis or The Trajectories Project fit within PHAC’s mandate and access data for the Trajectories Project. He and the other it agreed in January 2012 to support the project through parties involved understood that he would require aufunds from its 2011/12 budget. As stand-alone financial thorization to be able to use his existing data access for arrangements require many months to establish, PHAC, the Trajectories Project. This is why his initial contracts the ministry and Dr. W. Warburton sought a way to sewith the PHSA and the ministry included funding to draft cure the funding available until March 31, 2012, through the PIAs and the necessary work to get the data authoran existing contract between PHAC and the ministry. An izations in place. There is no evidence that Dr. W. Warexisting contract with the firm Blue Thorn fit this requireburton accessed and used the data before receiving this ment as this company had engaged in similar work in the authorization. past. Moreover, its contractual service commitments to the ministry at the time already included those necessary to produce deliverables for the Trajectories Project. CHAPTER 12 Dr. W. Warburton’s actions and indicated that his advice 12.4.4.6  Work on Alzheimer’s Drug Therapy Initiative (ADTI) as to whether Dr. W. Warburton’s conduct was a breach In 2012, Dr. W. Warburton signed a contract with the of the contract was based on what the lead investigator University of Victoria (UVic) to do some statistical data had told him. analysis that was part of the ADTI project. Bringing Dr. W. The lead investigator gave evidence that Dr. W. Warburton Warburton on as a subcontractor was well within UVic’s had told her that he was not currently doing work for the authority under the larger ADTI contract it held with the ministry, and that she conveyed that information to the ministry. The work that Dr. W. Warburton was planning HSS lawyer. She gave evidence that the HSS lawyer told to do required access to data that UVic received from her that if there was no active work being done under the the ministry. contract, then it should be concluded. The ADTI project did not receive any data throughout the The weight of the evidence, including the language of the fall of 2012.22 Dr. W. Warburton worked part-time for a contract termination letter and the correspondence to Dr. couple of months on ADTI, but without data access, there W. Warburton which followed, as well as the evidence was little work for him to do. By early October he was let of the HSS lawyer, leads us to conclude that the lead go from the project. He never accessed any data for the investigator advised the HSS lawyer that the investigaADTI project. tion was concerned that Dr. W. Warburton had accessed data inappropriately. Dr. W. Warburton’s contract was 12.4.4.6  Legal Advice on Contract Termination terminated on that basis. The Ministry of Health and the lead investigator sought some advice from the Legal Services Branch (LSB) re- On July 17, 2012, Dr. W. Warburton sought a meeting with garding the termination of Dr. W. Warburton’s contract the Ministry of Health because he did not understand why with the Province in relation to the study of atypical anti- his contract had been terminated. On July 20, 2012, Dr. W. psychotic medications. The evidence we obtained regard- Warburton’s lawyer wrote to the Ministry of Health stating the nature and scope of the advice provided was not ing that there were no grounds to terminate the contract, and seeking additional information about the basis for the entirely consistent and is described below. province’s position that it was authorized to terminate the On July 12, 2012, the Health and Social Services (HSS) contract. The lead investigator sought the assistance of lawyer prepared some draft language for use in a letter to the HSS lawyers in preparing a response. The HSS lawyer Dr. W. Warburton from the Ministry of Health setting out who assisted in drafting the contract termination letter that the ministry was terminating his contract for “failure was on vacation and so the Supervising Solicitor for the to perform certain obligations under the contract including, HSS group began advising on the matter. but not restricted to, improper access to provincial data.”23 The HSS lawyer said that the lead investigator told him The Supervising Solicitor was of the view that Dr. W. that Dr. W. Warburton had accessed data inappropriately. Warburton had not received an adequate explanation He said he advised the lead investigator that improper use as to why the contract was terminated. She advised the of data was “an event of default” under the agreement lead investigator that the province should provide Dr. W. and as such constituted cause to terminate the agreement. Warburton with specifics about his failure to perform his He told us that he did not advise the ministry to terminate obligations under the contract in sufficient detail to allow the contract on that basis but that he indicated that it was Dr. W. Warburton to respond. open to the ministry to do so. The HSS lawyer said that The Supervising Solicitor, in addition to the privacy lawyer he did not have any of the information that the Ministry and the employment lawyer, attended a July 30, 2012, of Health investigation team had gathered with respect to conference call with the lead investigator. The Supervising 22 This was a result of the ADTI contract being suspended. 23 The HSS lawyer is the lawyer from the Health and Social Services group at the Legal Services Branch of the Ministry of Justice who advised the Ministry of Health. 283 284 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS Solicitor was hoping to gain additional information about the investigation and the basis for the termination of Dr. W. Warburton’s contract. seen here or based on what we have found to date, I have concerns about the following.” Her view was that in the summer of 2012 it was still “early days” in the investigaThe Supervising Solicitor and the privacy lawyer were un- tion and no findings had been made. able to recall the content of the call in any detail. However, The privacy lawyer who attended the call could not rethe employment lawyer took extensive notes of the call, member its content. We asked him whether, around the which included the following excerpts of statements that end of July 2012, the lead investigator had indicated that the employment lawyer attributed to the lead investigator: it was still “early days” in the investigation, or if she had reached conclusions that something inappropriate had ƒƒ [the lead investigator] also explained relaoccurred. He told us that based on comments the lead tionships as between the parties and some investigator had made to him he understood that at that circumstances which caused her to be time the lead investigator thought there was strong evisuspicious — namely Malcolm had while dence that inappropriate things had happened. being at the Smith Foundation had facilitated some monies from the government to go a chair position at UBC which Malcolm held (not quite clear on hold [sic] this worked). Grant came from Ministry and Malcolm was beneficiary of grant. ƒƒ Malcolm also an adjunct professor at Harvard. ƒƒ [the lead investigator] also explained that Rebecca Warburton is married to Bill Warburton who is Malcolm’s cousin. ƒƒ Bill and Rebecca are co-owners of a company. ƒƒ Key third party is a person named Colin who is Rebecca’s friend and was also Malcolm’s PhD. student. Colin is an Adjunct Professor at Harvard. ƒƒ [the lead investigator’s] position is very clear that these three individuals have engaged in a conflict of interest and have breached confidentiality. ƒƒ [the lead investigator] said that the amount of collusion is mind blogging [sic] both internal and exclusion [sic]. Malcolm appears to be pulling the strings. When asked about the comments that the employment lawyer attributed to her, the lead investigator said that she did not recall using terms such as “conflict of interest” or “breaching confidentiality,” although perhaps she would have said “data breach.” She said that based on her personal style, she would have said “concerns around data access” and “based on what we preliminarily have Following the conference call, the Supervising Solicitor told the employment lawyer she would continue to press the lead investigator for information about the grounds to terminate Dr. W. Warburton’s contract. On July 31, 2012, the Supervising Solicitor sent an email to the lead investigator indicating that she still needed to understand “in much more detail than I currently have, the exact basis for concluding that there was an ‘Event of Default’ committed by W. Warburton in connection with his terminated contract.” She also sent the employment lawyer an email as follows: I’m expecting to meet with some resistance from [the lead investigator] in response to my request. I don’t think it’s that she wants to keep anything from us, so much as that she’s flying so fast on so many fronts that she is reluctant to take the time to sit down and sift through all of this information to provide me with what I need. She certainly much prefers to communicate by phone than in writing. On July 31, 2012, the lead investigator sent the Supervising Solicitor an email indicating that she believed sharing information with Dr. W. Warburton, other than at a “high level,” would jeopardize the investigation. The lead investigator instructed the Supervising Solicitor not to provide Dr. W. Warburton with any additional information, and similarly did not provide the Supervising Solicitor with any additional information about the basis for terminating Dr. W. Warburton’s contract for cause. CHAPTER 12 On August 3, 2012, the Supervising Solicitor received instructions from the lead investigator and the Assistant Deputy Minister of the Medical Services and Health Human Resources Division, which was responsible for the contract, to send a response to Dr. W. Warburton’s lawyer again citing “improper access to provincial data” as the basis for the contract termination, and providing no additional information. 12.4.4.7  Analysis: Contract Termination Decision The contract between Dr. W. Warburton and the Ministry of Health provided that the ministry could terminate the contract for cause in certain circumstances, or without cause given at least 10 days’ written notice. The ministry’s decision to terminate the contract for cause was made by an Assistant Deputy Minister previously uninvolved in the investigation. Despite advice from the LSB lawyers, the ministry did not tell Dr. W. Warburton what “event of default” triggered his contract’s termination. Based on the information we have reviewed, however, we believe that the reasons for terminating Dr. W. Warburton’s contract originated in the suspicions and concerns raised in the complaint to the Office of the Auditor General and coming from the data access area of the ministry. work on the atypical anti-psychotic drugs contract. He also believed the data suspension to be both temporary and a mere precaution. He fully expected the issue to be resolved and to have his work resume. Neither the ministry nor the investigation team spoke with Dr. W. Warburton about data use or access. While the team spoke with Dr. W. Warburton in June 2012, it did not interview him about his data use or access, his understanding of his June 11, 2012, data access suspension or his work for ADTI, the Trajectories Project, or the atypical anti-psychotic drugs contract. Nor did the investigation team provide him with any particulars to augment the little information contained in his June 11, 2012, data access suspension letter and his July 16, 2012, contract termination letter. LSB lawyers suggested to the Ministry of Health that the investigation team provide Dr. W. Warburton with more information, however, no further information was provided. The team continued to investigate Dr. W. Warburton after his contract was terminated, primarily relying on emails to construct “storyboards,”24 which detailed their concerns. Through the storyboards the team postulated that Dr. W. Warburton had inappropriately sought to use his existing data access for an external grant, that he entered into an improper research agreement with ICBC, and that A concern articulated in the drafts of the Internal Re- his work arrangement for the Trajectories Project was view report described in Chapter 7 was that a one dollar inappropriate. contract was inappropriate. There was no legal or policy reason to support the investigation team’s belief that the We gathered evidence and analyzed each of these allegamount of the contract was, in itself, inappropriate. The ations of misconduct, including those that were proposed investigators failed to consider information about the after the termination of his contract. rationale for approving the contract, the approvals that it We did not find evidence to support the allegations against did go through, or the benefits to the ministry of the work Dr. W. Warburton that the ministry used as a basis to terminate his contract. Put simply, they had no factual that was being done under the contract. Apart from general concerns about the amount of the basis. Dr. W. Warburton did not receive or use data as contract, it appears that the decision to terminate the a contractor on the ADTI project. His one dollar contract contract was based on the investigation team’s conclu- was fully approved and not considered inappropriate by sion that Dr. W. Warburton had inappropriately received the ministry at the time. Moreover, he did not seek to or attempted to receive ministry data as a contractor for circumvent data access procedures with respect to his ADTI after his access to ministry data was suspended. Dr. contractual work. To the contrary, he consistently sought W. Warburton’s evidence was that he did not understand to carry out his research work in the manner that he behis access to ministry data to be completely banned. He lieved best reflected the ministry’s policies, procedures believed it to be project-specific, and related only to his and his contractual obligations. 24 The “storyboards” were litigation support documents described in Chapter 11. 285 286 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS When Dr. W. Warburton’s contract was terminated, he team – those who had accessed or received Ministry of was no longer permitted in the building. The discs with Health administrative health data – had surrendered or the ICBC data were left in a locked cabinet in his min- destroyed any such data in their possession. This was istry workspace and were confiscated by the investiga- intended to mitigate the risk of future breaches related tion team. We were not able to locate these discs or a to that specific data. However, whereas the November record of what happened to them, although we received 2012 letters sought both to secure existing data in the some evidence that the discs were returned to ICBC and recipients’ possession and to ensure it was preserved as evidence for potential legal action, the August 2013 letters destroyed. The decision to terminate Dr. W. Warburton’s contract were concerned only with having recipients declare that was not only based on an inaccurate understanding of the they no longer had any data in their possession. relevant facts, the way in which the Ministry of Health responded when he sought more information was unfair and improper. Particularly in light of the public health value of the work Dr. W. Warburton was doing, it was incumbent on the Ministry of Health to ensure its decision was based on a reasonable assessment of the facts. Moreover, it should have provided Dr. W. Warburton with an adequate opportunity to respond to the allegations against him. It did not do so. The demand letters were drafted by Legal Services Branch counsel and the investigation team. Ms. Kislock signed and sent these letters to 16 individuals on August 1 and 2, 2013. The recipients included seven Blue Thorn associates, six Therapeutics Initiative researchers or former researchers, two University of Victoria researchers, and one independent researcher from BC Children’s Hospital. While all 16 individuals had their ability to access administrative health data restricted a year before, some had never accessed data to begin with and so were surprised to learn, upon receiving the letters, that they were the 12.5  Data Declarations subjects of an ongoing review. For others, such as the Blue By the summer of 2013, almost a year had passed since Thorn associates, the letters were the first communication the Ministry of Health had suspended access to adminis- from the ministry that hinted at the reasons for their data trative health data for contractors and external research- access suspensions. The letters did not specify whether ers. These suspensions were a result of recommendations the recipient was individually suspected of wrongdoing. made by the investigation team in the summer and early Researchers with the Therapeutics Initiative received fall of 2012. similar letters, although related to work that the ministry Following the release of the Office of the Information and Privacy Commissioner’s report on June 26, 2013, the newly appointed Deputy Minister, Stephen Brown, issued what both he and Assistant Deputy Minister Lindsay Kislock described to us as clear instructions to wrap up any unresolved data access issues related to the investigation. In order to do this, Ms. Kislock followed ministry policy to send letters to those who had their access to data removed, requesting they sign declarations attesting to the fact that they no longer possessed ministry data. These declarations, sent out in August 2013, were attached to “demand letters” similar to those sent to external contractors in November 2012. understood they were doing with “the Pharmaceutical Epidemiology Group, and work undertaken under the Therapeutics Initiative, the Alzheimer Drug Therapy Initiative or other associated Ministry projects.” The letters to researchers at the University of Victoria specified it was the researchers’ involvement with the Education for Quality Improvement in Patient Care (EQIP) project that was at issue. The letters ended by stating that the ministry’s receipt of a signed declaration would “allow the ministry to grant you data access privileges.” For Dr. Dormuth and two of his colleagues, the letters were particularly odd, as those individuals had already provided data declarations to the ministry in November The purpose of the data demand letters and declara- 2012 in response to the first set of data demand letters. tion forms was for the ministry to be able to confirm, in Those who signed and returned declaration forms received writing, that individuals of concern to the investigation follow-up letters from Ms. Kislock explaining that “the CHAPTER 12 receipt of the signed declaration concludes the review as it related to your involvement in these contract(s) and/or project(s).” These follow-up letters provided no additional information about the review or the reasons for the data suspension. While the letters went on to state that, “In future, if you wish to apply for data access privileges from the Ministry of Health, you can find information on the Ministry of Health’s Data Central Website,” they did not explicitly state that the recipients had their data access restriction lifted. The only way that individuals definitively learned that their data access privileges had been reinstated was when they were successful in obtaining employment with the ministry or when their names were included in subsequent data access requests that the ministry approved. As one Blue Thorn associate explained to us, “at some point I am assuming a switch happened and I was deemed to be [okay] again. Beats me when that happened. I have no clue … no one ever communicated to me that the problem was corrected.” project. As explained elsewhere in this report, the ministry’s concerns with the EQIP project, which ultimately resulted in the termination of the project, were groundless. One of the UVic researchers who received a letter had never before been identified as one of the subjects of any of the allegations relating to the misuse of data. This individual had no ministry data access, a fact that the ministry knew or should have known, at the time. This individual was given no notice or chance to respond to the ministry’s suggestion in the letter that he had been involved in “situations of inappropriate or unauthorized access” with respect to data. One of the UVic researchers (a professor) we spoke with who received a data demand letter in 2013 explained that he had never personally had access to the province’s administrative health data and, as such, did not understand the ministry’s rationale for requiring his declaration. UVic’s response to the ministry explained that the university had used, stored and shared all ministry administrative health data in accordance with the university’s Ms. Kislock reinstated data access privileges to all 12 agreement with the ministry. UVic agreed to return all of the individuals who returned their signed declaration remaining data in the university’s possession, none of forms. Of the remaining four individuals, one never re- which contained personally identifiable health informaceived the letter as it was sent to an old address. By tion, while expressing hope that it might be retained for the time that person learned about it, she had already possible future reference as was originally intended. UVic decided to cut all ties with the ministry and so chose not also pointed out that the ministry’s agreement with UVic contained “the grant of a perpetual, non-revocable license to respond. The University of Victoria’s Associate Vice-President of to use, reproduce, modify and distribute the EQIP data for Research Operations responded to Ms. Kislock’s letters research purposes to UVic” and that the ethics approval on behalf of two university employees who received the for the project required that the data be retained for at August 2013 letters. Ms. Kislock’s letter stated the min- least seven years. The letter ended by requesting further discussions on the matter. The ministry never responded istry had: to this letter. … identified situations of inappropriate or unThe last individual to not return a signed declaration was authorized access, use, storage and disclosure an independent medical researcher and physician with the of Ministry data and information, including third BC Children’s Hospital. Through legal counsel retained to party personal information … related to contracts respond to the August 2013 letter, she explained to Ms. and projects with the Ministry that you were inKislock that she could not sign the declaration form as volved and had access to Ministry data and inforits wording was so broad that it could conceivably relate mation in relation to your involvement with work to the health data that she retained for her own patients. undertaken by you under the Education Quality While she sought additional clarification from Ms. Kislock, Improvement in Patient Care project … no response was provided. A letter the researcher had In fact, no “situations” of inappropriate data access or sent a year earlier to Ms. Kislock, in which she requested use had been discovered that related to UVic or the EQIP urgent assistance in re-obtaining access to administrative 287 288 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS health data critical to her medical research, also went unanswered. Disillusioned by her experience working with administrative health datasets, the researcher told us she has chosen never to rely on the ministry again and so remains uncertain as to whether her access to ministry administrative health data remains blocked. When asked whether receipt of the signed declarations satisfied the remaining concerns that the ministry had with the recipients’ use of data, Ms. Kislock explained to us: … at that point in the process, it just needed to be done. There wasn’t anything – you know, I have an individual telling me they don’t have data anymore, and I’ve got a signed statement from them, and I’ve questioned them. I had to take them at their word, right? So I felt that I had fulfilled my obligations with respect to ensuring that there wasn’t a data breach and that there wasn’t ministry data out there that we didn’t have control – that I couldn’t get my arms around. Given that signed declaration forms satisfied Ms. Kislock’s concerns, we asked whether the letters could have been sent earlier and data access reinstated much sooner, thereby mitigating the harms many of the August 2013 letter recipients suffered. Ms. Kislock responded: … in hindsight I can think of no reason that it couldn’t have occurred. Right? Like, it’s easy for us to say now … In retrospect. Like, it always seemed like we were going to get to that and then getting to that didn’t – you know, that was September [of 2012] and we didn’t really get to that until the spring and early summer [of 2013]. The ministry sent the letters in August 2013. For over a year, the ministry prevented these 16 individuals from accessing ministry administrative health data even though it had no evidence or even allegations of data misuse to base these decisions on. Over the time access was suspended, important public health research was halted, families and careers were impacted due to job loss, and reputations were tarnished. CHAPTER 12 Findings F 34 Regarding the investigation of contractors and researchers: a. T he Ministry of Health’s decisions about which contracts and researchers to include as part of the investigation were wrong as they lacked adequate evidence or justification. b. T he investigation team failed to adequately familiarize itself with the contractual relationships between the ministry and its contractors. c. T he Ministry of Health unduly delayed its investigation into the matters relating to the contractors, researchers, and universities without due regard for the impacts of the delay on health research and individual livelihoods. F 35 In most cases, the ministry suspended data access of contractors and researchers on suspicion alone. F 36 Regarding contract suspensions and terminations: a. T he ministry wrongly suspended the ADTI, TI, and Blue Thorn contracts and wrongly effectively suspended the EQIP contract in the absence of evidence of wrongdoing. b. T he ministry’s decision to suspend the ADTI and TI contracts were wrong as they were based on suspicions about data use by Dr. Dormuth and there was no evidence that he had inappropriately used ministry data. c. T he suspension of the Blue Thorn contract was not based on evidence of wrongdoing and was not in the ministry’s own best interests. d. T he ministry’s Blue Thorn contract administrator was improperly led to believe by ministry officials that the suspension would be short-lived, and through no fault of his own advised the Blue Thorn associates of this. As a result, some Blue Thorn associates did not look for alternate employment sooner. e. T he ministry’s decision to terminate the Resonate contract was wrong because it was based on suspicions regarding Contractor 1 and Contractor 2. There was no evidence that either had inappropriately used ministry data. f. The ministry improperly suspended the data access for Contractor 1 and Contractor 2. g. T he Ministry of Health acted improperly when it terminated Dr. W. Warburton’s contract based on a misunderstanding of the relevant facts and by treating him unfairly. h. I t was wrong for the ministry to suspend and later terminate the Quantum Analyzer’s contract, based on an incorrect determination that Mr. Isaacs had done something wrong. The software was in active use at the time and the ministry had no replacement product ready. As a result, terminating the contract was not in the ministry’s own interest. i. The EQIP initiative was not renewed as a result of the ministry’s investigation. Minister Lake was wrong when he suggested that the decision not to continue EQIP beyond August 31, 2012 was a timing coincidence. 289 290 MISFIRE: THE 20l2 MINISTRY OF HEALTH EMPLUYMENT TERMINATIUNS AND RELATED MATTERS CHAPTER 13 13.0 / WINDING UP THE MINISTRY OF HEALTH INVESTIGATION AND SETTLING THE LITIGATION 13.1 Introduction On June 10, 2013, Stephen Brown replaced Graham Whitmarsh as Deputy Minister of Health. At that time the investigation was still ongoing, and government faced four outstanding wrongful dismissal lawsuits in relation to the termination decisions made in 2012.1 In addition, none of the grievances filed by the three unionized employees had yet been settled. 2 In this chapter, we describe the steps taken by Deputy Minister Brown to end the investigation and reach settlements with the terminated employees. The restoration of contracts and settlements with former contractors that also accompanied Dr. Brown’s decision to end the investigation were discussed in Chapter 12. 1 There was also one lawsuit related to contract termination brought by Dr. William Warburton. 2 The BCGEU and the province settled Dave Scott’s and Roderick MacIsaac’s grievances on June 25, 2013. The union and the province settled Ramsay Hamdi’s grievance on September 10, 2013. These are discussed in greater detail in Chapter 11. 291 292 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS View main timeline Jun 10, 2013 Oct 4, 2013 Feb 25, 2014 Stephen Brown begins position as Deputy Minister of Health. Final draft of Internal Review report completed. Robert Hart and the province settle litigation. Dec 29, 2015 Aug 25, 2014 Jun 12, 2014 Drs. Rebecca and William Warburton and the province litigation settlement announced. Ron Mattson and the province litigation settlement announced. Dr. Malcolm Maclure and the province settle litigation. 13.2  Review by Deputy Minister Stephen Brown After he became Deputy Minister of Health, Dr. Brown began a process to assess the ongoing investigation. This work was done at the request of John Dyble, then-Deputy Minister to the Premier. Ministry of Health reported back in the summer of 2012. The OIPC report was released on June 26, 2013. This, in combination with the work done by Deloitte (see Chapter 10), meant that the privacy issues arising from the investigation had in the Deputy Minister’s view, been addressed adequately. Shortly after Dr. Brown’s appointment as Deputy Minister, the lead investigator briefed him on the Ministry of Health We spoke with Mr. Dyble about the extent to which he investigation. Dr. Brown told us “the material didn’t make provided direction to Dr. Brown about reviewing the inves- sense to me how it was presented” by the lead investigatigation. He recalled thinking it was “really weird” that the tor. He described how, for a termination, he was used to investigation was still ongoing and instructed Dr. Brown to seeing a binder containing evidence, a recommendation, “take a look at this and try to figure out what needs to hap- information about consultations with the PSA and any pen.” He said he still did not have a clear understanding of legal advice. In this case, however, “that’s what I didn’t what had happened, and was not getting clear answers get. I got these big binders of an ongoing investigation.” from the people he had asked. He wondered why the investigation was continuing a year At the time, the Investigation and Forensic Unit (IU) of after the terminations. He recalled learning, for example, the Office of the Comptroller General was also working that the investigation team was trying to get information on its investigation into contracting issues, as set out in from a password-protected file that one of the fired emthe terms of reference issued by the Comptroller General ployees had created in 2002 or 2003. He said that the in October 2012. Based on his understanding of that of- investigation team: fice’s powers and expertise, Dr. Brown assumed that the … were trying to break into [the file] to see was IU would be able to do a “more structured inquiry” into there some evidence there that [the employee] those questions. could have been doing something back then, and without relating it at that time to, you know, the Concurrently, the Office of the Information and Privacy wrongdoing piece … I was trying to make sense Commissioner (OIPC) was in the process of finalizing its of this, how is that relevant to the proximate report into the three suspected data breaches that the CHAPTER 13 decision to terminate [the employee]? It made no sense to me as – it just made no sense to me in terms of the relevance. in terms of describing what was actually happening in the Ministry of Health. He was also concerned that it appeared the lead investigator was the only person who Dr. Brown began to wonder, based on the binders he had seemed to understand the narrative. He determined that been given and the “complicated narrative” the lead in- he “did not see the value in [the lead investigator] convestigator was telling him, if the investigation had lost tinuing to dig to try and find information to support the decision[s].” focus and moved to matters that were far out of scope. Approximately one year after the ministry’s investigation The lead investigator had intended to draft a report at the ended, an October 2014 government news release stated end of the investigation. Instead, Dr. Brown directed her to that Dr. Brown “reviewed the terminations made in 2012 cease investigating and not finalize any report. Following by the ministry and has determined that serious breaches this decision, the Assistant Deputy Minister of Health Serof policy occurred, but some of the employment termina- vices Information Management and Information Technoltions were unwarranted or were considered excessive.”3 ogy at the Ministry of Health, Lindsay Kislock, worked on a Dr. Brown told us that he had not conducted a formal draft final report that included specific findings relating to review himself and, as we describe in detail below, he contracting, data access and standards of conduct issues. relied primarily on outside legal counsel who had already This report, dated October 4, 2013, focused on actions that been retained by the province in the litigation to review had been taken in the year since the investigation began. the facts underlying the terminations and provide recom- Manjit Sidhu, the ministry’s Assistant Deputy Minister for Finance and Corporate Services and Executive Financial mendations on next steps. Officer, questioned whether the ministry had sufficient Some of the investigation team members and Assistant evidence to support some of the findings in this draft. Deputy Ministers involved in the ministry’s investigation He said: expressed a concern to us that Dr. Brown might have been … not sure we have the evidence to support most in a conflict of interest, given his previous involvement of the key findings in the report, particularly given with some of the projects and individuals subject to the the responses we received during the contractor investigation, when he was an Assistant Deputy Minister interviews. in the Ministry of Health.4 However, we found no evidence of any conflict of interest. Dr. Brown’s eventual decision to When we spoke with her, Ms. Kislock believed that there end the investigation and begin settling the litigation was was evidence to support most of the findings. Ultimatereasonable given the information about the investigation ly, however, Dr. Brown directed that the report not be that he was presented with by the lead investigator and finished. As described by Ms. Kislock: others, and the advice he received from legal counsel at [The lead investigator] was writing her final rethe time. port … it was always [the lead investigator’s] Dr. Brown began to inquire further into the evidentiary material that the investigation team had compiled. He learned that the lead investigator “was finding pieces – bits and pieces in thousands of pages … and she was inferring a narrative on it … there was a sense that [the lead investigator] was trying to dig for a bigger narrative.” He questioned the value of this work, given the parallel investigation the IU was conducting, and its reliability expectation that she would write a final report. She did a first draft of the final report and gave it to me. Then it was communicated to me that [the lead investigator] shouldn’t write that report. So then I thought that I would write that report. So I attempted a couple of drafts of that report. And then I was told that there would be no report. My 3 Ministry of Health, “Government apologises to family; reviews HR policy,” news release, 3 October 2014. 4 Stephen Brown was Associate Deputy Minister and Chief Administrative Officer in the Ministry of Health Services (as it was then called) from July 21, 2008, to March 14, 2011: Orders-in-Council 611/2008 and 69/2011. 293 294 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS report became a briefing note. And so the Minister of Health was given a briefing note. loss of opportunity, as well as punitive and aggravated damages. Around the same time, Dr. Brown decided to rely more Some steps were taken in the litigation, including the heavily on outside counsel, who was by then responsible exchange of particulars and mediation. for defending the wrongful dismissal lawsuits brought In June 2014, outside counsel provided a written opinion by the excluded employees. Dr. Brown believed that out- on the province’s exposure to liability in the lawsuit. He side counsel would offer an objective perspective on the advised that the province’s evidence relating to the allegevidence and the termination decisions. The ministry’s ations of just cause against Dr. Maclure “was either weak outside counsel, in turn, had his own doubts about the or non-existent.” However, he thought the court would find evidentiary basis for the termination decisions and began that Dr. Maclure had fully mitigated his wrongful dismissal to review the material collected by the investigation in damages and accordingly would not award damages for detail. This review deepened his concerns. Beginning in severance pay. He noted that there was a considerable October 2013, counsel provided government with legal risk the court would award Dr. Maclure damages for the opinions that strongly questioned government’s position province’s breach of its duty of good faith and fair dealing, in the litigation and recommended settlement. as follows: 13.3 Settlements The outside counsel who defended the wrongful dismissal litigation told us that when he was first told by the lead investigator about the investigation, he believed the province would have a strong defence to the lawsuits. He drafted the responses to civil claims on that basis. However, that opinion gradually changed as it became clear to him that the investigation had not actually found sufficient evidence to justify the terminations. When the litigation was underway, the lawyer prepared written opinions for the province with respect to its exposure to liability in each case. He told the province it was his opinion that there was insufficient evidence to establish that the province had just cause to terminate any of the employees in any of the cases. Relying on the advice from its lawyer, and on the instructions of Dr. Brown, the ministry began the negotiation process to settle the lawsuits. For each of the excluded employees the province agreed to settle the lawsuits. The details of the litigation for each of the individuals are summarized below. 13.3.1  The Lawsuit between Dr. Malcolm Maclure and the Province In relation to the allegation of bad faith conduct and aggravated and punitive damages there was considerable risk that given the lack of evidence in support of the allegations made against the Plaintiff that the Court would award aggravated damages and damages for breach of duty of good faith and fair dealing at the time of termination. In our opinion, in circumstances where an employer alleges it has cause but there is no evidence to support such an allegation the Court would likely find such conduct to be egregious and compensate the Plaintiff for being the victim of such conduct. In addition, although there was no damage suffered as a result of the breach of contract the Court could still award punitive damages in relation to the breach on the basis that the defamation constituted a separate cause of action related to the termination and there is some risk that the Court would find the conduct of the Province of alleging cause without sufficient evidence and issuing a press release unnecessarily referring to an RCMP investigation was egregious enough to award punitive damages. With respect to defamation, he advised that there was a On September 14, 2012, Dr. Malcolm Maclure filed a law- substantial risk that a court would find that the province’s suit against the province seeking damages for defamation reference to the RCMP at the September 6, 2012 press and breach of his employment contract, including damages conference was innuendo that the plaintiff had committed for constructive dismissal, bad faith, mental distress and a criminal offence, and that Dr. Maclure would be able to prove the defamatory sting of the words. Outside counsel CHAPTER 13 opined that the province would likely not succeed in establishing a defence to Dr. Maclure’s defamation claim. On June 12, 2014, Dr. Maclure and the province reached a settlement, and the lawsuit was dismissed with the consent of the parties on August 11, 2014. On July 18, 2014, the province publicly announced that the Ministry of Health had hired Dr. Maclure as a consultant in research and evidence development. A news release noted that Dr. Maclure had worked with the ministry over the past 20 years and had made contributions to improvements in health data privacy protection in ways that allowed researchers to analyze datasets. The release noted that Dr. Maclure would be working with the ministry on projects that would provide doctors “with confidential information about their prescribing and how to optimize use of medications.” The release stated that Dr. Maclure is “renowned in his use of data for evidence-based evaluation” and that he was fully eligible to access ministry data.5 13.3.2  The Lawsuit between Robert Hart and the Province reference to the RCMP at the September 6, 2012 press conference was that Mr. Hart had committed a criminal offence, the province would be liable to pay damages for defamation. He had also previously advised that it was likely that the court would find the witness the investigation team relied on with respect to many of the allegations against Mr. Hart “entirely incredible.” On February 25, 2014, Mr. Hart and the province reached a settlement. The lawsuit was dismissed with the consent of the parties on April 15, 2014. As a condition of the settlement, Mr. Hart was reinstated to a position at the Ministry of Health. 13.3.3  The Lawsuit between Dr. Rebecca Warburton and the Province On March 8, 2013, Dr. Rebecca Warburton filed a lawsuit against the province and Minister of Health Margaret MacDiarmid seeking damages for breach of contract, including damages for loss of reputation, and aggravated and punitive damages. In October 2015, following the examinations for discovery of the lead investigator and Dr. R. Warburton, the province’s outside counsel provided a written opinion with respect to the province’s exposure to liability in the lawsuit. He opined that the court would likely find that Few formal steps were taken in the litigation. In Febru- the province did not have just cause to terminate Dr. R. ary 2014, government’s outside counsel opined that the Warburton and that the most serious allegations against province would be unable to prove its allegations of just her were not well supported by the evidence. He advised cause against Mr. Hart and that the court would award that for many of those instances, Dr. R. Warburton had Mr. Hart damages for breach of his employment contract. an innocent explanation that he thought the court would He also noted that there was a significant risk that Mr. likely accept. He also opined that there was a significant Hart would be able to establish that, if he had had an risk that the court would award damages for the province’s opportunity to respond to the allegations against him, he breach of its duty of good faith and fair dealing, as well would have been able to explain why the investigators’ as punitive damages, owing to the flawed investigation conclusions were wrong, and that the court would award that led to Dr. R. Warburton’s termination. him aggravated damages as a result. Outside counsel thought there was some evidence that Dr. Outside counsel advised that there was also a potential R. Warburton had committed some breaches of policy and risk that the province would be liable for defamation. He procedure, but that a court “would likely conclude that the noted that there was no evidence that anyone at the breaches committed by Dr. Warburton were committed ministry believed that Mr. Hart had committed a criminal in furtherance of the wider objectives of the Ministry to offence. Accordingly, he advised that if Mr. Hart was able provide better data access to medical health researchers.” On March 11, 2013, Robert Hart filed a lawsuit against the province seeking damages for defamation and breach of his employment contract, including damages for mental distress, as well as punitive and aggravated damages. to establish that the defamatory sting of the ministry’s 5 Ministry of Health, “Ministry of Health hires consultant on evidence-based evaluation,” news release, 18 July 2014. 295 296 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS In late December 2015, Dr. R. Warburton and the province reached a settlement and the lawsuit was dismissed with the consent of the parties shortly thereafter. 13.3.5  The Lawsuit between Ron Mattson and the Province and Minister MacDiarmid Before Mr. Ron Mattson commenced a lawsuit against the province, his counsel sent the province certain demands 13.3.4  The Lawsuit between Dr. William and settlement proposals. On October 25, 2012, counsel Warburton and the Province and Minister for Mr. Mattson sent a letter to the employment lawyer MacDiarmid seeking an apology from the Minister of Health for public On May 6, 2013, Dr. William Warburton filed a lawsuit statements she had made, and indicated he intended to against the province and Minister MacDiarmid seeking send another letter seeking compensation for Mr. Mattson damages for breach of contract, unlawful interference for breach of contract and defamation. The government’s with contract, and defamation, including aggravated and Legal Services Branch employment lawyer forwarded this punitive damages. letter to the then-Deputy Minister of Health, Graham Some steps were taken in the litigation, including the Whitmarsh, and indicated that she expected to receive exchange of documents and attempts at reaching a medi- a claim for compensation for Mr. Mattson shortly. Mr. ated settlement. Whitmarsh replied, “I guess we just deny it all and throw Dr. W. Warburton discontinued his lawsuit against the the ball back to them.” province on June 11, 2015, but his lawsuit against former As we describe in Chapter 9, Mr. Whitmarsh already knew Minister MacDiarmid remained outstanding. The settle- that the PSA investigator believed the ministry did not ment of Dr. W. Warburton’s lawsuit was ultimately con- have just cause to terminate Mr. Mattson’s employment, cluded as part of the settlement negotiations between the but he had decided to terminate Mr. Mattson with cause, province and Dr. R. Warburton. Although outside counsel and negotiate later. Mr. Whitmarsh believed he was supdid not provide an extensive written opinion on Minis- ported in this approach by the PSA’s then-Deputy Minister ter MacDiarmid’s exposure to liability in that litigation, Lynda Tarras. he noted that in his view, the amount of the settlement The employment lawyer replied to Mr. Whitmarsh on Ocreached was less than the damages the court might have tober 26, 2012, as follows: awarded if the matter went to trial. Yes, the onus is on Mr. Mattson to show i) that On December 29, 2015, the Deputy Attorney General he was defamed (MoH denies defamation ocissued a statement on behalf of the province announcing curred); and ii) that he suffered any damages. So, that the province had settled its lawsuits with Drs. R. and our position on a response is that he can’t pass W. Warburton. The statement indicated that the province either hurdle. recognized that there were flaws in the investigation, as Based on the information I have seen thus far, identified by the McNeil review. It indicated that both however, it is less clear whether the MoH’s deDrs. R. and W. Warburton “acknowledge that they did fence of just cause to the wrongful dismissal breach some rules and procedures” and that the “Province claim would be successful if Mattson pursued recognizes that such breaches were motivated by their his claim to litigation. intention to further the research goals of the Ministry of Health and not for their own personal gain.” The state- On November 7, 2012, the employment lawyer sent an ment indicated that both Drs. R. and W. Warburton “are email to the PSA investigator seeking details about Mr. welcome to apply for access to health data for research Mattson’s past employment with the Ministry of Health purposes, or to apply to participate in contracted projects” and inquiring whether the investigation team had disand that “their requests will be dealt with in the same covered anything that the ministry might rely on as after-acquired cause for Mr. Mattson’s termination. The manner as all similar requests.”6 PSA investigator replied that she had not seen anything 6 Ministry of Justice, “Deputy Attorney General’s statement on Warburton settlement,” news release, 29 December 2015. CHAPTER 13 “particularly glaring” with respect to Mr. Mattson’s con- We asked the HSS Supervising Solicitor to explain the duct that they could rely on as after-acquired cause. exchange, and she gave the following evidence: Also on November 7, 2012, the employment lawyer had a phone call with the Health and Social Services (HSS) Supervising Solicitor. On that call they discussed the weakness of the province’s defence against Mr. Mattson’s case and the employment lawyer’s view that the province should give him 18 months of severance pay, or at least indicate that “we are working towards that.” On November 8, 2012, the employment lawyer wrote to the HSS Supervising Solicitor about Mr. Mattson’s potential claim: … yeah, so I think [the employment lawyer’s] response is that he probably has a good case for wrongful dismissal and that [the PSA investigator] and [the lead investigator] are maintaining that they can throw up some smoke. The employment lawyer explained that the reference to throwing up smoke meant that “I want to pretend that I have some negotiating power, but we may not.” On November 16, 2012, counsel for Mr. Mattson sent a letter to the employment lawyer seeking funds to settle his complaint. On December 3, 2012, counsel for Mr. Mattson called the employment lawyer seeking an offer from the Ministry of Health to settle his prospective claim. Counsel for Mr. Mattson indicated that if an offer was not forthcoming within one hour, Mr. Mattson would hold a press conference the following day. The employment lawyer wrote to the HSS Supervising Solicitor that in her view the amount suggested by Mr. Mattson’s lawyer was unreasonable given the lack of evidence of damage to Mr. Mattson’s reputation. She wrote that she did not recommend that the Ministry of Health take steps toward negotiation, especially given Mr. Mattson’s decision to call a press conference. She also wrote that negotiations might be premature, as the investigation was ongoing, and although the province’s defence of just cause was not strong, further evidence might be gathered that would bolster the province’s defence. In any event, the lawyers were unable to speak with Mr. Whitmarsh within the hour allotted to make a settlement offer. On November 20, 2012, the employment lawyer and HSS Supervising Solicitor spoke again. The HSS Supervising Solicitor’s notes from that call provide the following with respect to Mr. Mattson: That same day, Mr. Mattson filed a lawsuit against the province and Minister MacDiarmid seeking damages for wrongful dismissal and defamation. The province retained outside counsel to defend the litigation. gut reaction: prob. has a good case for wrongful dismissal On May 3, 2013, outside counsel provided Mr. Whitmarsh with a written legal opinion setting out his view that Mr. Mattson’s wrongful dismissal claim would succeed and that there was a considerable risk that the courts would award damages for breach of the province’s duty of good faith and fair dealing in the manner of his dismissal. This opinion did not address the merits of the defamation claim. I will be speaking to [the PSA investigator] about the evidence of misconduct, but if this is all we have, I would recommend that we strongly consider trying to avoid litigation over the wrongful dismissal since our chances of a successful defence are slim. On November 16, 2012, the employment lawyer and HSS Supervising Solicitor had a phone call. Among other things, they discussed Mr. Mattson. The HSS Supervising Solicitor’s notes state the following with respect to Mr. Mattson: Have no decent wrongful dismissal evidence on him. Wd be losing battle if litigated [PSA investigator] +[lead investigator]– some smoke we can throw up … mt. want to throw some $ at him just to get it completed In December 2013, the employment lawyer provided the Deputy Attorney General with a memo respecting outside counsel’s opinion on the strength of the province’s case. 297 298 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS Outside counsel’s view was that at trial the court would likely find the province liable for breach of contract and defamation. He thought that the province would not be able to prove that it had just cause to suspend and terminate Mr. Mattson and would have to pay him damages for severance as well as lost compensation during the course of Mr. Mattson’s suspension. He advised that the province’s only arguable position related to the defamation claim. However, he opined that the province’s weak evidence on the grounds for termination would likely influence the court’s view of the legal issues in the defamation claim in Mr. Mattson’s favour. He advised that there was a substantial risk that the court would find that the province’s reference to the RCMP in the September 6, 2012 press release constituted innuendo that Mr. Mattson had committed a criminal offence. He was of the view that there was no evidence that the province ever suspected that Mr. Mattson had committed a criminal offence. He also indicated that Mr. Mattson’s role as municipal councillor for View Royal, and Mr. Mattson’s position that his reputation had been diminished by the province’s conduct, would add to the amount of damages the court would award for defamation. Outside counsel indicated that he did not think that the court would award aggravated or punitive damages in relation to the defamatory comments, as there was no evidence of malice or ill intent on the part of the province. any hardship and possible loss of reputation which Mr. Mattson endured.”7 13.4  Handling of Employee Belongings When the employees were suspended from the Ministry of Health in July and August 2012, personal belongings in their offices were boxed up primarily by the investigation team and some belongings were returned to the employees. The manner in which the belongings were handled resulted in some employees’ belongings going missing. It was not clear that the investigators took sufficient steps to secure the contents in the former employees’ offices in the months before the contents were packed up. When packing up the belongings, employees did not always have the opportunity to look through their offices to determine what was their property as opposed to the ministry’s. Communication between the investigators indicates that it was the investigation team members who determined what were personal belongings as opposed to ministry property. The ministry property was not packed up in the boxes. The team members’ determination about ownership was not necessarily correct. One ministry employee who helped pack up an employee’s office did not create an inventory, nor was she asked to. During the process of packing and returning the personal The lawsuit lasted for approximately two years. Various belongings, the investigation team and the former employsteps were taken in the litigation, including the production ees and contractor exchanged multiple emails concerning of documents, a court application, examinations for distheir belongings. In October 2012, one of the former emcovery, and attempts at reaching a mediated settlement. ployees wrote to the Strategic HR Manager and itemized A settlement between Mr. Mattson and the province was several personal items that were not returned. In response, ultimately reached on about August 22, 2014, and the the Strategic HR Manager followed up with the investigalawsuit was dismissed with the consent of the parties tion team to try and locate the missing items. Some were on September 12, 2014. located, but many were not. On August 25, 2014, the province publicly announced This former employee raised the concern about these that it had reached a settlement of Mr. Mattson’s law- missing personal items with us during our investigation suit. A press release issued by the province noted that Mr. and identified some specific belongings that were missing. Mattson had been employed by the province for 28 years We learned that the boxes containing the contents of the and that the decision to terminate him was a “regrettable employees’ offices were stored in a room in the basement mistake.” The government thanked him publicly for his of the Ministry of Technology, Innovation and Citizens’ long years of dedicated service and stated that it “regrets Services. We went through the contents of these boxes 7 Ministry of Health, “Ministry of Health settles with former employee,” news release, 24 August 2015. CHAPTER 13 but were unable to locate the missing items. However, the boxes did appear to contain some personal effects, including books, photos, articles and personal items that had not been returned. Findings F 37 Deputy Minister Stephen Brown acted appropriately when he discontinued the Ministry of Health investigation. F 38 By late 2013, government had sufficient information (notwithstanding the outstanding Comptroller General report) to raise serious questions about the Ministry of Health investigation, yet it did not at that time initiate a structured and comprehensive review and reassessment as to whether those affected had been treated fairly and reasonably. Rather, the ministry addressed issues as they arose. F 39 The government’s reappraisal of the Ministry of Health investigation was largely initiated by the external legal counsel retained to defend government in the litigation brought by the excluded employees. 299 300 MISFIRE: THE 20l2 MINISTRY OF HEALTH EMPLUYMENT TERMINATIUNS AND RELATED MATTERS CHAPTER 14 14.0 / OFFICE OF THE COMPTROLLER GENERAL INVESTIGATION AND REPORT 14.1 Introduction Under the authority of the Financial Administration Act (FAA) the Office of the Comptroller General (OCG) is responsible for the overall quality and integrity of the financial management and control systems within government. Although the office is formally situated inside the Ministry of Finance, under the FAA the Comptroller General exercises power in a quasi-independent fashion. As currently constituted, the Office of the Comptroller General (OCG) has five formal branches responsible for: financial management, financial reporting and advisory services, corporate accounting services, corporate compliance and controls monitoring and procurement governance. Within this overall financial management framework, since 2007, the Office of the Comptroller General has had an Investigation and Forensics Unit (IU) responsible for investigating allegations of: suspected financial wrongdoing, suspected misuse of government property, or fraudulent activity made against government employees and contractors. From 2012 to 2015 the Director of the IU reported directly to the Comptroller General. As we discuss in this chapter, the ministry contacted the Office of the Comptroller General soon after it was notified of the initial complaint to the Office of the Auditor General. The Comptroller General referred the matter to the IU, which began monitoring the ministry’s investigation as it unfolded over the summer of 2012. In September 2012, the IU was considering conducting its own investigation into the allegations of financial improprieties. By October 2012, the Comptroller General formally approved terms of reference acknowledging the ministry’s investigation team “requested the Office of the Comptroller General’s IU to assist in their overall investigative efforts by performing a specific examination of the suspected procurement and contract irregularities involving” the Pharmaceutical Services Division (PSD). 301 302 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS View main timeline May 2012 May 2012 Aug 27, 2012 Oct 3, 2012 May 2012: Comptroller General informed of Ministry of Health investigation. Office of the Comptroller General’s Investigation and Forensics Unit (IU) begins monitoring Ministry of Health investigation.. Members of the IU attend meeting with RCMP and Ministry of Health lead investigator. Comptroller General signs terms of reference to begin IU investigation. Jul 31, 2013 Apr 2013 Dec 2012 to Jan 2013 Nov 2012 IU provides summary of its investigation to RCMP. Initial discussions take place between Office of the Comptroller General, UVic and the University of British Columbia (UBC) regarding IU requests for unfettered access to university records including employee emails. IU conducts information interviews with three Pharmaceutical Services Division (PSD) Executive Directors. Communications between IU and University of Victoria (UVic) begins regarding access to records. Nov 2013 Nov 28, 2013 Jan 2014 One of two principal investigators leaves IU. Treasury Board approves request for authority under the Financial Administration Act to compel the universities to produce and/or provide access to specific records and information. IU Manager leaves the Office of the Comptroller General. May 2014 Lone remaining principal investigator leaves IU. Apr 21, 2015 Apr 8, 2015 Jan 2015 Sep 2014 May to Sep 2014 Second draft report given to Stephen Brown, Deputy Minister of Health. First draft report given to RCMP. IU hires contractor to assist with report writing and quality assurance. Investigator who departed in May 2014 returns to IU and is reassigned to investigation. No investigators are assigned to IU investigation and no work is done. Apr 22, 2015 Apr 29, 2015 Jun 25, 2015 Jul 14, 2015 Feb 2016 Second draft report given to RCMP. IU meets with Deputy Minister Stephen Brown and Assistant Deputy Ministry Manjit Sidhu. IU Director provides final report to Comptroller General. Comptroller General advised of government legal council’s view that IU report contained inaccuracies. The government learns the Investigation and Forensics Unit report was leaked to the media. The ensuing IU investigation lasted two and a half years. It some identified in the complainant’s initial complaint to culminated in a draft report that the Comptroller General the Office of the Auditor General. The IU concluded that and the IU Director provided to the Deputy Minister of “the results of the investigation confirm the ministry’s conHealth and the RCMP in April 2015, before finalizing it cerns of PSD’s inappropriate procurement practices and in June 2015. contracting irregularities, including suspected conflicts of 1 In its final Internal Review report, the IU stated that it interest.” Although this part of the final Internal Review examined five initiatives administered by PSD, including report’s language is somewhat ambiguous, during our 1 Investigation and Forensic Unit, Office of the Comptroller General, Ministry of Finance, Project No.: 026115 Pharmaceutical Services Division Investigation, 3. CHAPTER 14 investigation both the Comptroller General and the IU Director told us they believed this report demonstrated that the IU investigation had uncovered both specific conflicts of interest of individual PSD employees and the existence of inappropriate procurement practices within PSD. In this chapter of our report, we describe the work done by the IU during its investigation and when producing the Internal Review report. 14.2  The Investigation Conducted Due to the unauthorized disclosure of the Internal Review report to the media, made public in early 2016, the IU’s by the Investigation and Forensic final report received significant public attention. To the Unit of the Office of the extent the report concluded or inferred that some PSD employees had engaged in wrongdoing, its leak raised Comptroller General renewed questions about whether the ministry had actually been correct in the first place to terminate some 14.2.1  Monitoring Stage of the employees and suspend some of the research The Office of the Comptroller General’s involvement with contracts in 2012. During our investigation, many of the the ministry’s investigation began in May 2012 when people involved in the ministry investigation, and dismissal Manjit Sidhu, the ministry’s Assistant Deputy Minister of decisions, relied on the report (or for those who had not Financial and Corporate Services and Executive Financial seen the report itself, on the media stories following the Officer, contacted the Comptroller General and told him leak) to defend their decisions. Some witnesses told us about the initial complaint. At the time, the ministry sought the IU’s Internal Review report vindicated the ministry’s the Office of the Comptroller General’s assistance with its investigation and the termination decisions that followed. investigation because the initial complaint contained allegations of financial and contracting improprieties against Based on our investigation we concluded that the IU’s several employees and contractors in PSD. investigation was beset with a number of problems that undermined the accuracy and reliability of many of the The Comptroller General initially decided to monitor the conclusions they reached in the final report. We also de- ministry’s investigation and asked the IU Director to litermined that, in many instances, the report inaccurately aise with the ministry’s lead investigator. This monitoring concluded, or drew incorrect inferences, that certain PSD phase lasted from May 2012 until October 2012, during employees and the others named in the report, had acted which time the IU Director and other members of the IU improperly in connection with the financial matters and re- team gave the ministry investigation team “functional search contracts the IU examined. Moreover, after the IU advice, guidance and support, including attendance at had completed its report and gave a copy to the Ministry informational meetings, conference calls and liaising/ of Health and the RCMP, the ministry’s outside legal coun- involving the RCMP.” The IU Director spoke with the minsel expressed concerns that the Internal Review report istry’s lead investigator many times during the summer contained inaccuracies. Based on this advice, government of 2012. In turn, the ministry investigators provided the lawyers were also concerned there was a risk the Internal IU with documents that highlighted the wrongdoing they Review report might be defamatory against some of the believed they had uncovered, including the draft July 18, people it named, because government knew that many of 2012 Internal Review report, the Alzheimer’s Drug Therapy the conclusions in the report were untrue. Although legal Initiative (ADTI) chronology and a file of emails related to counsel alerted the Office of the Comptroller General to conflict of interest concerns. these concerns in July 2015, the IU did not make inquiries Based on the information they received from the ministry to determine what parts of the report the ministry’s legal investigators between May and August 2012, the IU becounsel thought might be untrue. It is our view that the came concerned about potentially serious problems with inaccuracies in the report pose a real risk of reputational PSD’s contracting practices and the existence of possible harm to those it incorrectly concluded committed wrong- conflicts of interest. The IU was also concerned about doing, and against whom negative inferences were drawn. 303 304 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS the potential existence of a widespread fraud scheme within PSD. Members of the IU received information from the ministry’s investigation team throughout the summer. For example, the Director and another representative of the IU attended a conference call on July 30, 2012 with the ministry’s investigative team, representatives of the Public Service Agency (PSA), and government legal counsel, where the lead investigator described her concerns relating to collusion, breaches of confidentiality, and conflict of interest. They were also briefed on the employee suspensions that had occurred. Members of the IU also attended an August 23, 2012 meeting with the ministry investigation team and PSA representatives, at which time the IU heard about the ministry investigators’ theory of the case and the ministry’s plans to terminate employees. Around this time the lead investigator asked the IU Director to assist her with contacting the RCMP. As we described in Chapter 8 the IU Director facilitated the initial referral to the RCMP. He and other members of the IU joined the lead investigator at the initial August 27, 2012 meeting with the RCMP where the lead investigator outlined her concerns, explained her understanding of the wrongdoing the investigation team believed it had uncovered, and identified some of the people under investigation. As noted, in the aftermath of this meeting the RCMP opened an investigation file, but the RCMP told the lead investigator and the IU Director in attendance that it did not intend to commence an active investigation and indicated they would wait for a final report before deciding whether to commence an investigation. The RCMP did not ever commence an active investigation. On September 5, 2012, the day before the ministry made its public announcement of the dismissals and the data breaches, the IU Director emailed the Comptroller General to discuss the contents of the ministry’s news release and to summarize what he had learned about the ministry investigation. The Director described the alleged problems at the ministry to the Comptroller General: Based on my discussions and meetings with lead investigator ([lead investigator], OCIO) and various officials to date, the news release appears to be accurate. The terminations were to commence shortly after our meeting with the RCMP on August 27th I believe the first termination was scheduled for August 31st. The terminations and suspensions were based on available evidence (predication established). I have been involved in discussions of evidence and predication, leading up to the ministry decisions to suspend/terminate. … At the ministry’s request I consulted with the RCMP and arranged a hand off of a preliminary evidence package being put together by [the lead investigator’s] team. The RCMP advised it would take on the investigation and understands that there is additional evidence that needs to be gathered by the government. The first hand-off is only the preliminary evidence. … You were first advised of the allegations at the end of May 2012 … you forwarded the summary of allegations and the TOR, and I provided you an opinion on the issues at my regular update with you … my comments to you at that time stand … it is big, messy and very sensitive, there will be many more terminations before the dust settles … our unit has been providing [the lead investigator] and her team with functional advice, guidance and support, including attendance at meetings, conference calls and liaising/involving the RCMP … I advised the ministry that the evidence gathered to date was more than sufficient to involve the RCMP. … To summarize … the investigation is not complete… [The ministry’s] team has not tackled the conflicts of interest piece and wants some assistance. They understand we have a resourcing issue and I said I would talk to you upon your return from vacation. I do not know if she has sought out other avenues to assist in that area since we last met. I know that she had several more interviews to conduct after we last met so I would not imagine she has had time to do anything else other than keep the ministry briefed on the investigation, including this press release. CHAPTER 14 I advised [the lead investigator] last Friday (August 31st) that I would be speaking to you about trying to get the necessary resources to help her team out in the contracting area. I have not heard back from [her] this week. However, we have received considerable documentation from her to date including emails involving the persons of Interest … which would assist us in the contracting piece … ie, establishing actual conflicts of interest that are fraudulent and thus criminal. That should give you a high level overview of OCG’s involvement to date. At this point, it could be characterized as fulfilling your monitoring role. It could become more based on resourcing discussions/decisions. … and would be characterized as a ‘collaborative effort’ of various investigative units which is what one would expect when you have an investigation this complex. appropriateness of PSD staff (past and present) relationships with specific individuals, businesses and other entities to assess the allegations involving conflict of interest situations.3 According to the terms of reference, the IU expected its investigative approach would include gathering information related to contracting practices, processes and financial controls; reviewing documentation and records on specific contracts, grants and agreements as necessary; obtaining and analyzing emails of ministry staff and other public sector officials; conducting interviews as necessary; and performing any necessary corporate registry searches.4 The IU anticipated that it would provide interim reports to the Comptroller General and the ministry investigation team, and provide a final report to the Comptroller General, the Deputy Minister of Health and “other appropriate officials.” Shortly, thereafter, the Comptroller General approved a 14.2.3  The IU’s Investigative Approach larger role for the IU and asked the IU to formalize its 14.2.3.1  Association of Certified Fraud Examiners changed role in connection with the ministry’s investiga- The IU Director had extensive experience conducting tion, which led to the creation of the IU’s formal terms of investigations into allegations of financial impropriety. reference in October 2012. The IU Director was a professional accountant, a certified fraud examiner and a member of the Association 14.2.2  Terms of Reference of Certified Fraud Examiners (ACFE). Based on both his On October 3, 2012, the Comptroller General signed the experience and his ACFE accreditation, the IU Director terms of reference and the IU formally began its investi- characterized the IU approach as a fraud investigation. gation. Under the terms of reference the IU’s investigative He told us he conducted his work in accordance with the mandate was to “confirm or dispel the allegations” made ACFE investigative standards, which were the standards by the complainant to the Office of the Auditor Gener- the IU generally used at the time for its complex invesal through a “comprehensive examination of suspected tigative work. The ACFE standards outline a process for procurement and contracting improprieties involving the conducting fraud examinations based on the principle of Pharmaceutical Services Division.”2 The IU described its “professional skepticism.” The ACFE defines this approach specific objectives as follows: as: To determine the propriety of specific procure Beginning with the belief that something is wrong or ment and payment practices of PSD staff (past that someone is committing fraud; and present) involving certain entities, as identi Ensuring that the skepticism can be dispelled only by fied by the anonymous complainant and subsethe evidence; and quently requested for follow up by the ministry’s internal investigation team; and determine the 2 Office of the Comptroller General, Ministry of Finance, “Terms of Reference, Ministry Pharmaceutical Services Division Investigation,” 1. 3 Office of the Comptroller General, Ministry of Finance, “Terms of Reference, Ministry Pharmaceutical Services Division Investigation,” 1. 4 Office of the Comptroller General, Ministry of Finance, “Terms of Reference, Ministry Pharmaceutical Services Division Investigation,” 2-3. 305 306 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS Absolutely prohibiting opinions or attestations about the existence of a fraud-free environment.5 analysis compared the contracts and the procurement process to the government’s Core Policy and Procedures Manual (CPPM) and the Research Relationships Tool Kit to The IU Director also told us using the ACFE standards was consistent with the IU’s primary role to investigate confirm whether the research agreements were consistent allegations of suspected financial wrongdoing, suspect- with government policy. The CPPM is the key resource ed misuse of government property, or fraudulent activity for government on matters related to procurement. It is augmented by specific government policy, such as the Tool made against government employees and contractors. Kit, which was developed to provide policy guidance on By October 3, 2012, when the terms of reference were contracting with universities.6 finalized, the IU did not have any evidence that the Ministry had either experienced any direct financial losses The IU principal investigators described this work of with respect to the contracts under review, or had failed comparing the contracts to the CPPM, as examining the to receive the deliverables for which it had contracted. contracting controls to determine whether gaps existed However, the IU was concerned that both the informa- that could have allowed improper practices to have oction they received from the ministry investigators and the curred. The IU investigators also reconciled the financial complainant’s initial allegations raised serious questions accounts related to the contracts, using extracts from the about potential conflicts of interest within PSD. The IU government’s Central Accounting System (CAS) and finanDirector told us that in his view the seriousness of po- cial information obtained from the University of Victoria tential conflicts of interest were a “red flag” that a fraud (UVic) and the University of British Columbia (UBC). This method of assessment allowed the investigation team to might be occurring. capitalize on the extensive audit experience the principal The IU Director envisioned the investigation as a “collab- investigators had, and enabled them to use a standardized orative effort of various investigative units,” which includ- model to create a common baseline from which to evalued the ministry investigation team and the RCMP. He told ate the agreements and identify any areas of concern. us that he had a standing instruction from the Comptroller This approach also allowed the IU investigators to use General to cooperate with the RCMP in relation to all their audit experience to develop initial lists of questions IU investigations in which the RCMP have been notified. and concerns and identify the types of information they Accordingly, the IU provided periodic updates to the RCMP would need to answer those questions. upon request throughout the IU’s investigation. This information included detailed outlines of the wrongdoing Through the audit-style assessment, the investigators the IU believed it had uncovered, and eventually, a copy familiarized themselves with how PSD procured and strucof the draft IU report. The Director told us he understood tured its contracts in relation to the CPPM and the Tool Kit. the RCMP might use the information his team provided, Of equal importance, the investigators gathered a large and ultimately the IU’s final report, as a basis to start a amount of background information that explained how and why PSD chose to establish its research programs as it criminal investigation. had. Their approach allowed the investigators to deter14.2.3.2  Audit-Style Approach mine whether there were any financial control gaps, to Throughout the first year of the IU’s investigation, the IU reconcile financial details, and to understand the context lead investigators conducted an audit-style analysis of of research agreements and individuals’ roles in relation three contracts the ministry investigators had identified: to those agreements. This was significant because when it Alzheimer’s Drug Therapy Initiative (ADTI), Education for received this file, the IU investigation team was generally Quality Improvement in Patient Care (EQIP) and Academ- unfamiliar with government policy on contracting with uniic Detailing Evaluation Partnership Team (ADEPT). This versities and the common forms of research agreements 5 Association of Certified Fraud Examiners, Fraud Prevention and Deterrence, 2016 . 6 See Chapter 4.4 for a detailed description of the Research Relationships Tool Kit. The 2010 version of the Tool Kit is in Appendix C. CHAPTER 14 the ministry typically used with those institutions, such as contribution agreements. Of course, emails are a form of evidence that can be important to explaining the nature of relationships, the The reports generated through this audit-style analysis extent of communication between various parties, or the also showed that the IU investigators determined that reasons why decisions were made. The IU provided us many of the contracts it examined appeared to comply with numerous examples from their other investigations with the applicable government procurement policies. In where emails allowed them to understand allegations of our view commencing the investigation with this aud- questionable transactions. While reviewing emails are a it-style approach was a reasonable approach because it helpful investigative step, they were insufficient in this provided valuable information to assist the investigators context to support proper investigative conclusions. The in evaluating and drawing conclusions about the specific IU needed to assess whether the information contained allegations. By approximately the end of 2013, the IU Dir- in emails was accurate, complete, reliable and corroborector felt that the seriousness of the allegations required ated by additional evidence (where possible) and consider the IU to move beyond the audit assessment to focus more whether the totality of the available information tended to prove or disprove any material facts at issue. closely on the specific allegations themselves. During our investigation we determined that some of the 14.2.3.3  Focus on Emails incorrect conclusions the IU reached arose from an overWhile they were conducting their audit-style analysis, the reliance on emails. For example, the IU reported it could IU investigators also examined emails sent and received “confirm” that PSD transferred funds to an outside entity by the parties of interest. Once the IU ceased its aud- before a contract was in place authorizing the transfer. In it-style assessment the investigators began to focus more reaching this conclusion, the IU relied on an email from the heavily on emails. The IU Director told us that increasing complainant in which she referred to a discussion she had the focus on emails was necessary to determine “what overheard that money was being transferred without an was actually going on.” One of the investigators explained agreement. The IU also relied on a note about the transfer that in addition to the information they gathered through of funds in a meeting minute that appeared to support the audit process, they were “looking at the emails for the email. When we examined the transaction, however, clues” that might illuminate the allegations of wrongdoing. we determined the funds in question were transferred in In this way, the IU’s investigative approach effectively accordance with a duly authorized agreement between mirrored the approach used by the ministry investigators the ministry and the outside entity. Our investigation also and exposed the IU investigation to the same risks that found there was a large volume of documentation explainthey might misinterpret the content of those emails. ing the history of the transaction that, when viewed as a The IU investigators told us that analyzing the contract whole, demonstrated that the complainant misunderstood documents against the requirements of the CPPM was the information she believed supported her assertions. unlikely to uncover the wrongdoing that they believed It appeared that the IU reached this conclusion by focusing was occurring below the surface of the contracts. In our too heavily on the email while placing insufficient weight interviews with IU investigation team members, they rea- on the other evidence that it had gathered. In this case, soned that they could “follow the money” more effective- the IU had asked at least two Executive Directors within ly through a “forensic analysis” of emails because they PSD to explain the structure of this particular contract. believed the emails might show the real decision-making Having received this information, the IU should have been processes within PSD, the relationships between the in a position to understand the full scope of this agreepeople of interest, and how contract funds were being ment by reconciling what they were told with the contract used and distributed. One of the investigators explained documents. The IU’s initial draft report also showed that to us that without the emails, they could not know what the team had reviewed the ministry’s financial information the universities or researchers were hiding. that demonstrated how the funds associated with the project had been used. The final Internal Review report 307 308 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS refers to the agreement that authorized the fund transfer, while at the same time asserting that the funds were transferred without an agreement in place. qualified. The IU Director and the Comptroller General also discussed the possibility of adding outside contracted resources to the team, but they were unable to do so with the exception of a contracted computer analyst, who was experienced using the specialized software the team used to manage the large volume of digital records they obtained. 14.2.3.4  Gaps in the IU’s Internal Processes Based on our review, we determined that the IU’s investigation suffered from several significant gaps in their internal processes that hampered the investigators’ ability to conduct an investigation that was consistent with the The IU also had difficulty retaining the staff who were standards we would have expected the IU to apply. The assigned to the investigation. This caused significant IU had also identified several gaps themselves, which they difficulties, particularly given the small size and limited set out in the report to notify the reader of the limitations resources of the IU to begin with. The core of the IU inof their work. The more problematic gaps that we iden- vestigation team was assembled by November 2012. It initially comprised three investigators and a Manager. One tified included: of the original investigators retired and left the team in insufficient resources to conduct an investigation of December 2012. The IU was unable to find a replacement this length and complexity for the position. Thereafter, between December 2012 until no investigative policies and a lack of training provid- the end of 2014, the IU had no more than two investigators ed to the IU investigators at any one time. One of the team’s two principal investigators left the team in November 2013 and she was not lack of substantive interviews replaced. The Manager left the IU in January 2014. These These internal process gaps, in conjunction with some departures limited the amount of hands-on investigative other problems we identified with the IU’s investigative work the team was able to perform. As a consequence, approach, ultimately undermined the accuracy of the con- between November 2013 and September 2014 the IU clusions the IU reached. investigation team was reduced from an initial complement of five full-time staff (including the IU Director) to 14.2.3.4.1  Insufficient Resources During our interviews, nearly everyone associated with two staff (one principal investigator and the IU Director) the IU investigation acknowledged that resource con- and a contracted analyst responsible for digital records straints imposed limits on the IU’s investigation. It was management. The remaining principal investigator also noted that the size of workload of both the IU Director’s left the IU for a period between May and September 2014, and the Manager’s workloads was an impediment to con- leaving the IU Director with no staff for approximately four ducting the investigation in a timely fashion because they months. The Director confirmed that no work was done on had to balance overlapping commitments across multiple the investigation during that time because he was unable to find a replacement during her absence. complex investigations. Another constraint we identified was the IU’s inability to recruit and retain trained investigators to conduct the investigation. The IU Director told us recruiting qualified staff was a consistent challenge he faced. He also told us he took several steps to add resources to the IU team, including having discussions with the Office of the Auditor General to determine whether they were willing to assist the IU by providing experienced investigators to assist with the investigation. The IU Director also ran two competitions during the investigation to try to add more investigators, but the applicants were not sufficiently 14.2.3.4.2  Absence of Investigative Policies and Training The two principal investigators who conducted the majority of the investigation were professional accountants with extensive audit experience, having worked in the Ministry of Finance for many years. However, they told us they had relatively little recent experience in conducting an investigation of this size and complexity and neither was accredited by the ACFE. One of the two principal investigators told us she had not done hands-on investigative work for approximately 10 to 15 years before being CHAPTER 14 assigned to the team. The other principal investigator said evidence, could be sufficient to justify contacting the she had not done any hands-on investigative work for police. “several years.” The Director told us it was “tough” hav- Within the constraints they encountered, it was clear to ing inexperienced investigators on his team and acknow- us that the two principal investigators did their utmost ledged that this limited their investigation. For example, he to conduct the investigation in a detailed and organized said one of the reasons the team did not conduct detailed way so as to address the questions in the IU’s terms of interviews was that the Director lacked confidence in their reference. The two principal investigators did a lot of good ability to do them effectively unless he also participated. work gathering and organizing a large volume of informaDespite existing as a separate unit within the Office of the tion. Both investigators had a reasonably well-developed Comptroller General since 2007, by 2012 the IU had not understanding of the types of information they needed developed any training materials for its investigators. Ac- and the kinds of questions they needed to ask to advance cordingly, although the IU’s principal investigators lacked their inquiry. As well, despite the lack of developed polirecent investigative experience, the IU did not provide cies, training or oversight, the principal investigators’ work them with any supplementary investigative training. The was structured, thoroughly documented and demonstratIU also had not yet developed a written set of investi- ed awareness of the relevant government policies. gative policies, standards, guidelines or procedures. This 14.2.3.4.3  Lack of Substantive Interviews meant that neither of the two principal investigators had access to guidelines to assist them with their work. In our The IU conducted very few interviews as part of its work. view, the absence of specific training and clear policy or At the outset of its investigation, the IU team spoke with a guidelines meant the principal investigators lacked a basic handful of Ministry employees including two executive directors in PSD and an acting executive director. All of these set of investigative tools to conduct the investigation. executive directors had extensive first-hand knowledge In the absence of training materials and investigative of the research programs and the specific contracts under policies, the principal investigators relied on the training, investigation. But other than to obtain some initial basic knowledge and experience of both the IU Director and background information about the PSD program areas it the IU Manager, both of whom were ACFE accredited. was investigating, the IU did not ask detailed questions However, both the IU Director and the IU Manager told about the concerns they had identified about the programs. us that the ministry investigation was not the only large investigation the IU was conducting at the time. As a The IU also interviewed the complainant in May 2013, apresult, they needed to manage a significant investigative proximately seven months after its investigation began. workload and were often not available to oversee the We were told by one of the IU investigators that when it investigation. Without adequate resources and guidance, came to drafting the report, the IU focused primarily on the principal investigators told us they were at times un- allegations the complainant made during her interview. certain as to how the ACFE standards applied to their This focus is reflected in the body of its report. Apart from these interviews, the IU did not conduct other detailed investigative work. interviews with any of the individuals subject to the inThe IU investigation team also lacked policy about the vestigation or with any current or former ministry staff or circumstances under which a matter should be referred executives familiar with the relevant research programs to the RCMP. The IU Director told us he did not think there and the contracts. was a particular standard to apply, and the decision to refer would be based on the IU’s past experience with The Comptroller General told us that he had understood for similar investigations. The IU Manager also confirmed that several years that his office did not have the legislative authere were “no clear guidelines and policy” outlining exact- thority to interview anybody who was not was not actively ly what evidence warranted contacting the police. He told employed in the public service. He understood this meant us a mere allegation of wrongdoing, without supporting that the IU could not compel people who no longer worked with the public service to attend an interview and, as a 309 310 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS result, the terminated employees and others who had left government were unavailable. Similarly, the IU Director told us that he also understood that the IU did not have the authority to interview former public servants. The IU Manager told us he was also uncertain about the breadth or limits of the Comptroller General’s authority in this area. Court to direct a person to comply with an order to be so examined, and if the person fails to comply with the order, on further application to the Supreme Court, that person could be committed for contempt as if in breach of an order of the Supreme Court. The evidence we obtained indicates that both the Comp- Having received this advice, both the IU Director and troller General and the IU Director sincerely believed the Manager should have understood the scope of their inIU lacked the authority to interview people no longer em- formation-gathering powers. If they continued to have ployed in government. Nevertheless, it is clear that the uncertainty, it is our view that they bore responsibility IU had this authority under the FAA and it was unclear to ensure they clarified the scope of their authority. The to us why this mistaken perception persisted in light of IU did not act on the advice it received highlighting its the legal advice the Office of the Comptroller General ability to conduct interviews with any person it thought obtained on the point. necessary. Further, although the IU believed it could not For example, in 2007 the Ministry of Finance’s legal coun- compel non-government employees to speak with them, sel wrote a detailed legal opinion discussing several differ- it also did not ask whether former employees, such as Mr. ent aspects of the Comptroller General’s authority under Nakagawa, the former Assistant Deputy Minister of PSD, the FAA, which the Comptroller General said he became would agree to speak with them voluntarily. aware of after his appointment. The lawyer explained The Comptroller General and the IU Director told us they that the Office of the Comptroller General had very broad believed it would have been inappropriate to speak with powers under section 8(2)(d) of the FAA to examine “any the terminated employees while they were engaged in person,” provided the matter under investigation related active litigation or arbitration against the province after to something the office was otherwise “required or author- the terminations occurred. This was a reasonable position ized to check, examine or control.” This meant the office for the IU to take while those proceedings were ongoing. was not limited to interviewing people actively employed However, this does not explain why the IU did not interin the public service, but could interview anybody during view individuals who were not engaged in litigation or an investigation, provided the subject matter fell within with current employees within PSD who had detailed the Comptroller General’s jurisdiction. information about the research programs and contracts Similarly, in August 2012, approximately two weeks be- under investigation. fore the terminations took place, the IU Manager asked government lawyers to clarify the then-suspended employee’s obligations to attend the ministry’s investigation interviews and answer questions. It is unclear why the IU sought advice on this point instead of the ministry’s investigators. Regardless, the substance of the legal advice emailed to both the IU Director and the IU Manager reaffirmed the breadth of the Comptroller General’s information-gathering powers: I do note however, that beyond employment related consequences, the Comptroller General has power to compel any person to be examined with respect to matters that the Comptroller General is required or authorized to check under any Act. The Comptroller General can apply to the Supreme The IU Director told us he believed the decision whether to conduct interviews was a question of professional judgment and he also said he was concerned that the IU investigators could “tip their hand” about the nature of their concerns and the focus of their investigation. He also emphasized that his investigators were inadequately trained to conduct detailed interviews. He felt that due to the serious nature of the allegations any interviews would require his presence and his heavy workload would have prevented him from participating effectively. In the normal course of an investigation, evidence should be tested by providing individuals who are the subject of allegations with an opportunity to know and respond to the allegations before any conclusions are drawn. By providing individuals with an opportunity to hear and respond CHAPTER 14 to the allegations, an investigation team can determine relationship with the contractor represented an impermiswhether it is necessary to reassess any of its prelimin- sible conflict of interest and wanted this employee to conary conclusions and identify additional issues for inquiry. tinue to act on the ministry’s behalf. In its review the IU Sometimes it may not be possible or appropriate to give learned that the employee had declared the conflict of an employee the opportunity to respond to the allegations interest, as was required under the Standards of Conduct, directly, because they are engaged in legal proceedings and that the ministry’s legal counsel recommended that against government or because of a real risk that doing PSD advise the Deputy Minister of this situation, and seek so might compromise an investigation. his approval. The approval of the Deputy Minister was In our view, the seriousness of the allegations of wide- sought. In its final report the IU ended its analysis of this spread financial misconduct and the fact that the alleg- situation by saying only that the Deputy Minister did not ations were directed against specific people inside PSD approve of the employee acting in the conflict of interest required the IU to conduct more comprehensive interviews. position, and noted that she remained in the position for While it was reasonable for the IU to not interview the ter- several years until she took a job outside of government. minated employees while legal proceedings were ongoing, The IU noted it did not know what, if any, steps were taken it was clear to us that the failure to conduct more exten- to mitigate the conflict of interest. sive interviews of people with direct knowledge of the The IU’s discussion of this example invited a negative inprogram areas deprived the IU of information that would ference that the employee had remained in a conflict of have enabled it to reach accurate conclusions. Moreover, interest position. This was not the case. By failing to speak despite the misunderstanding that both the Comptroller to the employee, or anybody else inside government with General and the IU Director had about the limits of the knowledge of the situation, the IU did not learn that the IU’s power to conduct interviews, interviewing current employee’s responsibility for the contract was removed public servants was always within the authority they both after the Deputy Minister made his decision, and the understood the IU possessed. Not doing so compromised shares had been promptly sold in order to eliminate the the investigative process because the IU was unable to conflict. This information was available at the time and fully assess the validity of the allegations the complainant easily discoverable. By inviting an incorrect negative inferhad made, to ensure they had all of the relevant informa- ence the IU unjustifiably risked damaging the employee’s tion about PSD’s procurement practices and were properly reputation when it was clear that the conflict of interest informed about the conduct of the suspected individuals. had been addressed. Not conducting interviews limited the IU’s understanding of the context and history of PSD’s research programs and why the Ministry of Health had structured its research programs and contracting the relationships as it did. This undermined the accuracy and reliability of many of the conclusions it reached. 14.2.4  Collaboration with the Ministry Investigation Team The evidence we gathered demonstrates that the IU and ministry investigation team had a collaborative relationship. The ministry investigation team regularly shared information with the IU from the start of the IU’s The risks posed to the accuracy of the IU’s conclusion run involvement in 2012 until the ministry investigation was throughout the final report. For example, in one instance, disbanded in the fall of 2013. the IU team identified a potential conflict of interest situation involving a PSD employee who had not been identified As we have described above, before it formally began its by the complainant or the ministry investigators. In this investigation, the IU received a significant amount of inforcase, the IU was concerned that the employee worked mation from the ministry investigators and had offered its within PSD while also being a significant shareholder opinion that the alleged wrongdoing merited a referral to of a ministry contractor. Part of the employee’s ministry the RCMP. The IU continued to have regular contact with role included managing this contractor’s ministry contract. the ministry investigators after its investigation began. The employee’s supervisor did not believe the employee’s 311 312 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS From October 2012 to June 2013, the IU investigators have otherwise had. The evidence we reviewed demoncommunicated with the ministry investigators to gather strated that two teams developed a common view of the documents, provided input on the scope of the govern- alleged wrongdoing, including who was responsible, and ment’s document disclosures decisions in the wrongful the means by which it should be investigated. dismissal litigation brought by the dismissed employees, The existence of a relationship between the IU and the and provided advice around the suspension and termina- ministry teams was not in itself a problem. The IU ention of some of the ministry’s contractors. The teams also visioned a collaborative relationship with the ministry held joint update and strategy meetings, and discussed team from the outset and cooperation between different the disclosure of information to the RCMP and access investigative bodies is often essential to conducting an to university documents. The lead investigator from the effective investigation. Particularly in the early planning ministry collaborated with the IU in its requests for docu- stage, cooperation between investigators can avoid duplimentation from the universities. cation of effort and can help to ensure that each investigaBetween July and October 2013, the ministry and IU teams tion is properly focused and dealing with discrete issues. met on at least four occasions and the teams shared in- At the time, neither investigation team had guidelines or formation about who was an appropriate focus of the formal policies for collaborating on an investigation of this IU’s investigation. An internal IU note dated July 31, 2013, nature. In this case, the collaboration lacked an appropristated, in part, that the ministry lead investigator “wants ate structure such that the IU team was not sufficiently us to focus on [three individuals – two employees and a at arm’s length from the ministry investigation. We found researcher] w/goal of getting info to RCMP.” The indi- that the collaboration between the investigative teams imviduals identified in this exchange and the projects with pacted the objectivity of the IU’s investigative conclusions. which they were associated formed a core part of the IU’s final report. 14.2.5  Obtaining Information from In this case, it not unreasonable for the IU to believe that the ministry investigators had already done significant investigative work to allow it to come to its conclusions. For example, the IU Manager told us he understood the findings contained in the July 18, 2012 draft of the Internal Review report that he received from the Ministry of Health were true and that “anything that they put in [the] document is well supported with evidence.”7 This was a reasonable assumption based on the way the report was presented to the IU. Unfortunately, because the report presented a developed theory of the alleged misconduct and described unproven allegations as “findings,” it created the risk of compromising the objectivity of the IU investigation to the extent that it informed the lens through which the IU investigators assessed issues. This risk was compounded by the fact that there had already been employment termination decisions and contact with the RCMP. Given the number of times the two teams met and shared information and discussed investigation strategy, it is our view that the IU lost some of the independence it would 7 Universities The IU believed that obtaining information from the universities was an important step in enabling it to understand the ministry’s research contracts and its wider relationship with the universities. It took early steps to engage with the universities and from approximately November 2012 until mid-2013 the IU spoke with university representatives several times to facilitate access to the relevant information they held regarding the research programs and contracting relationships. Although the IU understood that the universities intended to cooperate with its investigation, the IU was concerned about whether it had the authority to obtain all of the records it sought. Therefore, beginning in February 2013, the IU began a months-long process to obtain greater legal authority in order to compel the universities to provide unfettered access to their electronic and financial information. The universities were willing to provide the financial records but were understandably hesitant to provide the IU with unfettered access to their employees’ emails, because they were concerned that doing so would breach See Chapter 7 for a detailed discussion of the draft Internal Review report. CHAPTER 14 their own contractual and privacy obligations to their staff and researchers. Thereafter, it appeared the IU did not take meaningful steps to work with the universities to try to develop an information access protocol acceptable to both sides. While Later a government lawyer told the IU that obtaining a Treasury Board Directive could overcome many of the ob- there was no guarantee that the IU and the universities stacles the IU faced in gathering information from the could have reached a mutually acceptable agreement, a universities. But the lawyer made clear that obtaining the major sticking point appeared to be the IU’s decision to directive did not remove the IU’s obligations to respect the keep the focus of its investigation secret. This limited legitimate interests the universities sought to protect. The the universities’ ability to fully assess the IU’s informalawyer’s advice included a practical recommendation that tion request. The lack of information from the IU also the IU continue to work with the universities to try to de- prevented the universities from effectively checking their velop a process to access their information in an orderly own internal controls for data and research funds to deway. The advice also highlighted the need for the IU to termine whether there were potential problems with their consider the potential negative impacts to public percep- contracts or the financial control systems. This concerned tion that could arise if the two sides failed to agree on an university staff, who thought that if there were in fact problems with the universities’ handling of contracts, acceptable process: they should be made aware of them. The IU’s request for However, that [statutory] power is also not unfettered access to the universities’ records arose, in unlimited and given possible arguments repart, from IU’s uncertainty about whether the university specting personal privacy and/or academic freeadministrators were participants in the alleged research dom that could be made, I think a court might contracting improprieties. consider imposing limits or conditions on the use 14.2.5.1  Pursuit of Treasury Board Directive of the power if UVIC legally challenged a broadly worded order issued by the Comptroller GenerThe IU’s internal records indicate that as early as Novemal. For that reason even if an order is to be issued, ber 2012 it began considering whether it needed to obtain it may be advisable to endeavour to work with a Treasury Board directive to obtain information from the UVIC to see if some kind of protocol relating to the University of British Columbia (UBC) and the University implementation of the order can be worked out of Victoria (UVic). The Comptroller General told us that that both serves your investigative needs and reeven considering obtaining a Treasury Board directive was spects to the extent possible the privacy interests unusual and that this was the first time he had sought a and academic freedom of the individuals involved. directive to compel an entity to provide information to Reaching an agreement on a protocol (if that can his investigators. be achieved) also seems far preferable from a Pursuing the directive took a long time, and one of the IU’s public perception perspective to the possibility principal investigators told us that she worked on comof the Province being legally challenged by one pleting the necessary paperwork for at least six months, of its own institutions. which left her with very little time to do any investigative Throughout the spring and summer of 2013, the IU held talks with the universities to try to secure access to their records. When the universities proposed an access protocol that they believed satisfied their need to protect the contractual and privacy rights of their employees and researchers, the IU rejected it as unworkable. The IU described the universities’ proposed data collection and examination protocols as too restrictive and believed a protocol would have prevented the investigation team from meeting their professional examination standards. work during that period. As part of the Treasury Board submission process, the IU was asked to submit a legal opinion to show how the relevant provisions of the FAA supported the application for the directive. It took several months for the opinion to be completed, which confirmed the Office of the Comptroller General could obtain the directive it sought. The content of the opinion reveals, however, the complex nature of the IU’s request and discusses the many factors the Treasury Board needed to consider in its deliberations. 313 314 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS When the IU made its submission to the Treasury Board, information to conclude the investigation when the decion November 20, 2013, it emphasized the critical import- sion was made not to use the authority the directive proance the IU placed on getting unfettered access to the vided. The IU Director told us that several considerations universities’ digital and financial information. Further, the went into the decision not to use the directive including IU repeatedly highlighted the fact that, without the Treas- the potential impracticality of implementing it, the length ury Board directive, it would be “unable to adequately of time it took to obtain it and concerns about the IU’s conclude on the allegations due to a significant scope lim- own lack of resources, given the departures one of the itation,” and that “limiting access to key evidence would principal investigators and the IU manager in November 2013 and January 2014 respectively. Whatever the reason obstruct the conduct of a professional investigation.” On November 26, 2013 the Comptroller General met with underlying the IU’s decision, the IU Director repeatedly the Minister of Finance and made submissions in person told us that the absence of more detailed information from to facilitate the IU’s request. When the Treasury Board the universities hampered the investigation. issued its directive on November 28, 2013, it gave the IU full authority to obtain records from both universities in the manner it determined appropriate. 14.3  The Final Report Coincidentally, the IU was just finalizing its Treasury Board 14.3.1  Problems with the Content of the submission as the Ministry of Health decided to end its Report own investigation in October 2013. When UVic learned On June 25, 2015 the IU finalized its report in the form of that the ministry’s investigation was completed, it asked a memorandum to the Comptroller General from the IU the IU whether its review was also completed. In Nov- Director. In our view, the limitations we discussed above ember 2013, the IU told UVic that its investigation was compromised the IU’s fact finding and led it to reach many ongoing and reiterated its position that it might require incorrect conclusions based on mistakes of fact that run additional information. The IU had analyzed the informa- through the entire report. While the IU’s final report is tion received from the universities up to the point when careful to alert the reader to the limitations it encountered the Treasury Board directive was obtained and formed during its investigation, the IU report is more like a workthe opinion that the information was inadequate to fully ing paper than a final report. From this perspective, it is answer its questions. not that there were no issues meriting further inquiry but rather that it was not a completed report. We reviewed a 14.2.5.2  Decision Not to Use the Treasury Board number of the issues covered in the IU report and identiDirective fied material inaccuracies. Because of those inaccuracies, Although the IU originally sought the Treasury Board dirto the extent that the report contains findings of fact and ective because it believed it would be unable to fulfill its conclusions that are presented in final form, it cannot be mandate without it, the IU decided not to use the directive relied on. once it was granted. As a result, it did not compel the universities to provide the digital and financial records it Overall, we found that many of the IU’s conclusions were had said were required to fully conduct their investigation. based on mistaken facts or an incomplete understanding We sought to understand the rationale for the decision of the evidence to such an extent that the conclusions (and not to use the directive given the long time and significant inferences) the report draws are incorrect. In addition, significant sections of the report contain imprecise language effort expended to obtain it. that imply wrongdoing on the part of PSD employees in The IU’s final report stated that using the directive “would a way that falls short of reaching a clear conclusion, but not be practical.”8 Both the Comptroller General and the makes it appear clear that the IU believed wrongdoing IU Director agreed that the IU did not yet have sufficient had occurred. 8 Investigation and Forensic Unit, Office of the Comptroller General, Ministry of Finance, Project No.: 026115 Pharmaceutical Services Division Investigation, 10. CHAPTER 14 Further, we found that in many cases, the IU had obtained evidence that could have dispelled allegations that the IU was investigating, but the report appeared not to include an analysis of this evidence. In other cases, even when the report correctly described the facts, the IU reached incorrect conclusions or drew unjustified negative inferences by failing to adequately consider the Ministry of Health’s research objectives, the prevailing health research policy environment in existence at the relevant time, the complete history and context of the research agreements, the timeline of events, or some combination of all of these factors. We determined that the IU did not discharge these roles in this investigation which undermined the conclusions in the final report. 14.3.2  Allegations of Conflict of Interest According to the terms of reference, the IU intended to “determine the appropriateness of PSD staff (past and present) relationships with specific individuals, businesses and other entities to assess the allegations involving conflict of interest situations.” The IU interviewed the complainant in May 2013. The records of the IU’s interview notes with the complainant show that she had made wide-ranging allegations about relationships and conflict of interest situations involving various individuals throughout government, even outside the ministry. The IU generally limited the analysis in its report to a representative sample of PSD initiatives that it believed were representative of the problems the complainant raised. Some of its more substantial sections, like that dealing with the ADTI, directly address concerns the complainant raised in her initial complaint. Much of the IU report focused heavily on the role Dr. Maclure played in the PSD programs that had been established. As we described in Chapters 4 and 7 of our report, Dr. Maclure’s role at the Ministry of Health arose inside a structural framework that was unusual within the government context as the ministry sought to bring together government (and its data) with the academic research community (and its expertise). From our interviews with the IU team members, it did not appear that they appropriately weighed the extent to which the senior executives From the outset it is clear that the report focuses heavily inside PSD understood Dr. Maclure’s role, or the extent to on allegations of wrongdoing against Dr. Maclure. The which senior executives up to the deputy minister level, report begins by highlighting its conclusion that Dr. Mahad expressly approved the unique structure of his pos- clure was in an actual conflict of interest due to his “mulition and the role they expected him to play. tiple incompatible roles” as both a ministry employee and This, of course, is not to suggest that the IU needed to external researcher on PSD initiatives. In coming to this agree in every case that the ministry used best practices conclusion we found that the IU relied primarily on its in the way it structured its affairs. Indeed, the IU may interpretation of emails and the contractual documents it have disagreed or disapproved of the structure that the had reviewed. For the reasons we described previously in ministry had put in place. It was open to the IU to be this chapter, the IU did not interview Dr. Maclure or concritical of the novelty of the approach or the checks and duct substantive interviews with any other individual with balances the ministry put in place. However, in the con- program area knowledge. This is unfortunate because it text of its investigation into specific allegations against could have helped the IU better understand the nature specific people, the IU investigation needed to fulfil two of Dr. Maclure’s roles and involvement in the initiatives roles. First, the IU needed to ensure that it understood under investigation and how they were supported by his how this novel structure was created, who approved it superiors. and for what purpose. Second, the IU needed to direct any As we have described in Chapter 3, the standards to apply concerns it might have had about the appropriateness of when assessing whether a public servant is in a conflict of this structure within government toward those who cre- interest are found in the Standards of Conduct for public ated and approved it. This would have enabled the IU to service employees. It is our view that the IU was obliged direct any questions of accountability to the appropriate to apply these standards because it was assessing the management level within the ministry. conduct of individual public servants. 315 316 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS The Standards of Conduct state: A conflict of interest occurs when an employee’s private affairs or financial interests are in conflict, or could result in a perception of conflict, with the employee’s duties or responsibilities in such a way that: ƒƒ the employee’s ability to act in the public interest could be impaired; or ƒƒ the employee’s actions or conduct could undermine or compromise: ƒƒ the public’s confidence in the employee’s ability to discharge work responsibilities; or ƒƒ the trust that the public places in the BC Public Service. 9 Accordingly, we would expect the IU’s analysis of conflict of interest to focus on these standards by analyzing the nature of Dr. Maclure’s duties in relation to his role as a PSD director, his research role, and in relation to the specific initiatives where he is alleged to have been in an actual or perceived conflict of interest. We would also expect the analysis to consider what “private affairs or financial interests” are in actual or perceived conflict with his ministry roles. The mere fact that a government employee has an external interest or outside employment, by itself, does not mean that they are in a conflict of interest position. Each case must be assessed on its particular facts and weighed against the test established by the Standards of Conduct. In this case, the IU report indicates early on that Dr. Maclure is an “external researcher” and that he has “private interests” in relation to the various research initiatives described. The IU does not clearly explain how it defined “external,” how it determined that Dr. Maclure was an external researcher on the initiatives, or identify what private interests he held that conflicted with his duties as a public servant. The IU report also does not explain how his interests or activities impaired his ability to act in the public interest, or how his actions might compromise public confidence or trust. Questions of conflict of interest can often be complex and nuanced and this was particularly the case for Dr. Maclure. It was clear to us that Dr. Maclure had spent 9 most of his career in government building bridges between the ministry and the wider research community, to focus on public health issues of interest and to benefit the ministry. The former Assistant Deputy Minister of PSD, Bob Nakagawa, described Dr. Maclure’s role as creating an “exquisite synergy” between the ministry’s interests and the broader research community. However, the type of embedded researcher position that Dr. Maclure occupied at the Ministry of Health, which might be common in the larger culture of health science, was unusual within the provincial government, and certainly unfamiliar to the IU. Being unfamiliar with this culture, the IU’s analysis lacked understanding of how Dr. Maclure’s position was structured. The IU also lacked the historical context within which Dr. Maclure’s position and work with the Ministry of Health had evolved. As we discussed in Chapter 7, Dr. Maclure’s work in this area was a central feature of his ministry role for most of the nearly 20 years he worked at the ministry. The explanations for how his role developed, how senior executives viewed it, and how they had approved it, was well documented in his employee file and job description and documented in connection to the ministry projects he worked on. However, to Dr. Maclure’s detriment, the PSD did not have one overall document that articulated the way in which the Ministry of Health might have considered potential conflict of interest issues with respect to placing Dr. Maclure in such a role within the PSD. There was also not one document, per initiative, to specifically detail the decision-maker’s assessment of whether Dr. Maclure was in any potential conflict of interest. Instead, answers were embedded in various documents, indicating that the decision-makers had considered the question in specific reference to each of the initiatives. Mr. Nakagawa, as well as certain executive directors, came to the ministry from the clinical setting of a hospital, where we have learned that dual roles and cross-appointments are normal. Until the events of 2012, individuals working in PSD had not necessarily anticipated that others looking into PSD from the outside, might not appreciate its framework or the rationale for Dr. Maclure’s role within the division. The failure to ensure that better documentation was available to British Columbia, “Conflicts of Interest,” Standards of Conduct for Public Service Employees. CHAPTER 14 transparently demonstrate the rationale for Dr. Maclure’s role within PSD was problematic. Maclure’s roles within it. The details the IU chose to cite in the Internal Review report to support their conclusions, also suggest that the IU reached its conclusion because it included several mistakes of fact in its analysis and it did not appear to know, or appropriately weigh, the full extent of the knowledge, purpose and approval of Dr. Maclure’s role with the Ministry or the universities in connection with this project. When assessing the specific allegations against Dr. Maclure, the report does not fully consider the extent of the evidence that shows Dr. Maclure had disclosed potential conflicts of interest as he was required to do, nor the extent to which his involvement on the initiatives were approved and potential conflicts were managed by his superiors. This is a problem because it leaves the read- In assessing Dr. Maclure’s role, the IU focused heavily on er with the inference that Dr. Maclure might have done the fact that he prepared a draft of the ADTI contract in something improper when the evidentiary basis to support 2007, at a time when the ministry envisioned him acting as such a conclusion is lacking. What the evidence shows a principal researcher on some of the program’s sub-studis that Dr. Maclure often was involved in facilitating the ies as a ministry employee. When the IU assessed this work of various partners on collaborative projects, the suc- aspect of Dr. Maclure’s role, they concluded he was in a cess of which often involved dealing with various issues conflict because he held a position in government and including funding from a variety of sources. was affiliated with UVic at a time the ministry knew it As we will discuss below, in relation to the four initiatives intended to enter into an agreement with UVic to lead (ADTI, EQIP, ADEPT and PhORSEE) in which the IU conclud- the study. In reaching this conclusion, the IU inaccurately ed Dr. Maclure was in an actual or perceived conflict of described Dr. Maclure as an “external researcher,” when interest, we determined that in some cases, the alleged his involvement on ADTI was entirely connected to his conflict of interest did not exist. In one case we found role as a ministry employee. While it was true that Dr. evidence that a potential conflict of interest did exist but Maclure prepared a draft of the ADTI contract, he did so that Dr. Maclure identified the conflict and ministry offi- as a ministry employee at the request of the ministry’s cials took steps mitigate or remove the conflict, whether project manager. through policy, contract or other means, as they were required to do. In all cases, we found that Dr. Maclure’s roles with respect to the initiatives were known to and condoned by his superiors. In the following sections we highlight some of the problems with the conclusions of the IU report with respect to each of these initiatives. One of the concerns the IU identified arose from the fact that Dr. Maclure would (or could) benefit from his connection to UVic, because UVic was receiving research funding from the ministry and (because Dr. Maclure’s) name would appear on the publications arising from the study. In our interviews with the IU team, they told us that being placed in a position to benefit from the ministry contract was one way to identify an impermissible conflict in this case. 14.3.2.1.1  Alzheimer’s Drug Therapy Initiative The report notes that the complainant alleged that Dr. Maclure was “in a conflict of interest with respect to his In conducting its assessment, however, it did not appear duties involving ADTI. Specifically, that Dr. Maclure was that the IU appropriately weighed the fact that publishinvolved in ADTI negotiations as a ministry employee, and ing the study results was one of the ministry’s goals of at the same time, he was acting on behalf of UBC and the ADTI. The IU did not appear to consider that Dr. MaUvic as a university researcher.” At the conclusion of its clure was not personally receiving any of the research discussion of Dr. Maclure’s role in this initiative the re- funds intended for the university. The IU report also did port says the IU team “confirmed that the [complainant’s] not mention that the formal project planning documents allegations respecting Dr. Maclure’s conflict of interest discussed the ministry’s goal of ensuring the study would be methodologically sound and fit for publication. Both of involving ADTI “have merit.” these ministry goals fell within Dr. Maclure’s academic As we discussed in Chapter 5, the complainant lacked speciality and were what he was expected to contribute knowledge of the ADTI initiative and did not understand Dr. to the project. 317 318 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS Further, the formal project planning documents identified 14.3.2.1.2  Education for Quality Improvement in him by name and highlighted the role the ministry ex- Patient Care pected him to play to bridge the ministry’s interest with In its report the IU noted the complainant’s allegation the interests of the researchers included in the study. Dr. that Dr. Maclure “received remuneration as a ministry emMaclure’s bridging role on ADTI was consistent with the ployee and “a contractor” under the Education for Quality role the ministry had asked him to fill in his government Improvement in Patient Care (EQIP) program because “he role for at least the preceding decade (when he was not ran things, decided who got funding, and what initiatives on leave to universities) and was extensively documented went forward.... because he was on the working group and in his personnel file. implementation group and these groups made decisions on The ADTI planning documents also highlighted the ADTI which research projects go ahead.” At the conclusion of project goals, which included building a new collaborative its discussion into Dr. Maclure’s role the IU stated it had relationship with the university, industry and the research “confirmed that some of the [complainant’s] allegations community. The IU report did not include a consideration respecting conflict of interest situations involving EQIP that any potential conflict Dr. Maclure might have had have merit.” was addressed through the fact that he was not the final decision-maker and did not determine whether the project proceeded, and he did not approve the research budget, the final content of the contract or the project deliverables schedule. By focusing on his connection with UVic and his role writing a draft of the agreement, in our view, the IU insufficiently considered other facts that outlined the history, context and purpose of Dr. Maclure’s role in the project and showed that his interests in the project were not incompatible with his ministry role. In our view, it appeared Dr. Maclure’s role furthered the ministry’s interests (as they described in their program planning documents) by helping ensure the scientific rigour of the ADTI, which the ministry believed was a key component of this complex collaborative government-patient-industry-researcher initiative. As described earlier in our report it was clear that Dr. Maclure was actively involved in the EQIP initiative in several ways. He played an active role creating the initiative while he was on an approved leave of absence from government and remained actively involved in it once his employment with the ministry resumed. However, the complainant’s allegations contained important misstatements of fact, including the incorrect assertions both that Dr. Maclure received remuneration as contractor under the EQIP agreement and that he had final decision-making responsibility. Dr. Maclure was not a subcontractor to the EQIP project and he received no remuneration apart from his regular ministry salary after he returned to government. The Transfer Under Agreement document explicitly provided that Dr. Maclure would receive no financial remuneration and we saw no evidence that he received any additional remuneration. While Dr. Maclure held an important role as Implementation Direction of the project, it was the director and executive director of the Ministry of Health’s Drug Use 1. Dr. Maclure’s involvement as a ministry employee in Optimization (DUO) branch and the ADM of PSD who were ADTI and his concurrent role as a researcher was disthe final decision-makers for EQIP. Further, most decisions closed, known and explicitly condoned by his superiors, about the direction of EQIP were made through a group 2. Dr. Maclure’s ability to act in the public interest was that included external stakeholders. This evidence is exnot impaired by his role as a researcher; and tensively documented in the ministry’s program area files 3. Dr. Maclure’s conduct in carrying out his responsibil- including the group’s meetings minutes. ities in relation to ADTI could not be said to undermine In our view, the ministry’s records showed that the minor compromise the public’s confidence in his ability to istry openly turned its mind to consider whether Dr. Madischarge work responsibilities; or the trust that the clure was in a conflict of interest in his role in the EQIP public places in the BC Public Service. To summarize, with respect to the Standards of Conduct, the evidence supports that, regarding ADTI: CHAPTER 14 project, and actively took steps to address the conflict questions in an appropriate fashion. objectives of Dr. Maclure’s role BC Academic Chair for Patient Safety Office to be compatible with the ministry’s objectives. Moreover, the IU report appeared not to consider that Dr. Maclure was not acting in a personal capacity in relation to EQIP but as a public sector employee in his two roles – as the publicly funded B.C. Academic Chair in Patient Safety at UBC, which is a public institution, and as a ministry employee. The IU report further states that in “the IU team’s opinion, Mr. Maclure’s involvement in EQIP demonstrates that his efforts were not singularly focused on serving the interests of his employer (the province).” We are unclear how the IU could have come to this conclusion particularly in the absence of substantive interviews with the individuals involved in the initiative. Based on the evidence we ob- To summarize, with respect to the Standards of Conduct, tained, we determined that Dr. Maclure’s focus remained the evidence supports that, regarding EQIP: on advancing the ministry’s interest in EQIP including the 1. Dr. Maclure’s multiple roles as an employee, researcher public policy goals of the initiative at all times. and the BC Academic Chair for Patient Safety were Overall, IU’s analysis of the conflict of interest allegation disclosed and explicitly condoned and supported by did not include consideration of the following important his superiors in relation to his involvement on EQIP, facts: 2. Dr. Maclure’s ability to act in the public interest was the public policy rationale for the ministry engaging in the project, and the close integration between government’s policy objectives and the research project10 the Ministry initiated its involvement with EQIP while Dr. Maclure was on a leave of absence from the Ministry it was a condition of his leave of absence required by the then-Deputy Minister that Dr. Maclure demonstrate how his work advanced the research interests of PSD, of which EQIP formed a part government legal counsel and Ministry finance staff were involved in the development of the EQIP transfer under agreement and ensured the agreement expressly addressed the risks of any potential conflict of interest involving Dr. Maclure when he returned to the ,inistry from his leave of absence, and he was not paid under the project the Ministry benefited from Dr. Maclure’s involvement through his role in assuring the validity of the study design and his ability to ensure the project was delivered Through our interviews with individuals who were the EQIP decision-makers we learned they considered the not impaired by his role as a researcher generally or as the BC Academic Chair for Patient Safety specifically; and 3. Dr. Maclure’s conduct in carrying out his responsibilities with respect to EQIP could not be said to undermine or compromise the public’s confidence in his ability to discharge work responsibilities; or the trust that the public places in the BC Public Service. 14.3.2.1.3  Academic Detailing Evaluation Partnership Team The IU concluded that Dr. Maclure was in a conflict of interest with respect to his dual roles as a ministry employee and his involvement on the Academic Detailing Evaluation Partnership Team (ADEPT). Although we describe the ADEPT initiative generally in Chapter 4 of our report, we have not addressed Dr. Maclure’s involvement in it because it was not one of the initiatives examined during the Ministry of Health investigation. As a member of the Canadian Academic Detailing Collaboration, Dr. Maclure teamed with a group of academic detailers and researchers and they applied for and obtained a grant from Health Canada to evaluate academic detailing programs across Canada. He commenced this process while on his leave of absence from the ministry. 10 A letter from the then-Acting Director of Pharmacare dated April 29, 2005, stated in part, “although the Ministry Services has often collaborated with researchers, this initiative is unique in how the research is an integral part of the policy. Our policy to re-invest savings on drugs requires scientific measurement. To measure savings accurately, there is a need for a control group and statistical techniques. The policy cannot succeed without the research, nor can the research succeed without the policy.” 319 320 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS When Dr. Maclure returned to the Ministry of Health he approached the executive director of PSD’s DUO branch (which was not his home branch) in 2007, to make her aware that he was applying for external funding, including from the Canadian Institutes for Health Research (CIHR) to conduct evaluations of academic detailing. He asked the executive director whether the ministry wished to provide support for the partnership’s initiative. Dr. Maclure disclosed his potential conflict of interest in making this request. In his email he stated: POTENTIAL CONFLICT:  Until now I haven’t asked you to support the Canadian Academic Detailing Collaboration’s proposal for impact evaluation (attached), because I thought it might be a conflict of interest (as I am principal investigator). Also we hoped to get MSFHR matching funds if CIHR approves. He also forwarded the executive director all the documentation relevant to the proposal, including a description of his role as the principal investigator for the project. Following his conflict of interest disclosure, his own executive director in the POER branch and the PSD Assistant Deputy Minister, Bob Nakagawa were also made aware of the relevant details with respect to Dr. Maclure’s involvement in ADEPT. required for the project according to the stipulations set by the CIHR. The CIHR funding stipulations provided that the Principal Investigator, in this case Dr. Maclure, could not be paid under the grant. UVic’s records show that Dr. Maclure did not receive any personal financial benefit from the funds. The potential conflict that Dr. Maclure disclosed was that if the Ministry of Health agreed to partner with the initiative, the addition of British Columbia to the broader study could enhance the proposal’s success. The potential conflict was not that Dr. Maclure would receive any direct financial benefit himself. The CIHR policy prevents the Principal Investigator from being paid from the grant monies and this restriction extends to payment received from a partner’s matching funds. A 2009 briefing note approved by Mr. Nakagawa documents that the decision to engage in ADEPT was made based on PSD’s own consideration of the benefit to the ministry from its participation in this initiative. However, neither the briefing note, nor any of the other documents that we reviewed, make clear how the decision-makers resolved the potential conflict question that Dr. Maclure had disclosed. We asked both the executive director of the DUO branch and the then-Assistant Deputy Minister, Mr. Nakagawa how they considered the conflict of interest issue with respect to ADEPT. Unfortunately, due to the passage of eight years, they did not recall how the question was resolved. However, what was clear to us through our investigation was that Mr. Nakagawa, the executive director of the DUO branch and Dr. Maclure’s supervisor were attuned to issues of conflict of interest and how they ought to be addressed. Separately, but around the same time, the ministry commenced its Provincial Academic Detailing Service which was launched by the PSD in March 2008. Thereafter PSD decided to partner with ADEPT in order to allow it to obtain an independent evaluation of the provincial program as part of the broader pan-Canadian study.11 As part of its commitment to ADEPT, the ministry agreed to a three year commitment in the form of a combination of cash and in- This is an example where written documentation recordkind support (e.g. staff time). These funds were matched ing the analysis and decision would have been useful to dollar-for-dollar with funding from an outside funder, CIHR, explain how the executives in PSD had exercised their discretion under the Standards of Conduct following Dr. to support this pan-Canadian initiative. Maclure’s disclosure of his potential conflict of interest. On February 2, 2009, the executive director of PSD’s DUO branch issued a grant to the University of Victoria to sup- In 2011, the initiative was extended by two years and the port ADEPT, that Dr. Maclure signed on behalf of UVic as ministry had not yet met its original funding commitment the Principal Investigator. Both sets of grant monies, from to the initiative. The PSD decided to contribute $24,000 the ministry and CIHR were paid directly to the university from its budget to make-up for the deficiency and meet its and held in the university accounts to be disbursed as original funding commitment. Rather than issue a grant to 11 This evaluation is described in Chapter 4 CHAPTER 14 fund the initiative as occurred when the initiative started, PSD entered into a direct awarded service contract with UVic on March 31, 2011 for $24,000. The draft contract was reviewed by the Ministry of Health’s Finance Division and staff raised the potential conflict of interest issue before it was approved. As a result, PSD and the Finance Division took a number of steps to remove the potential conflict of interest from the final contract. In the end, both the final contract document package and the direct award justification forms were reviewed and approved by representatives of both the Finance and Pharmaceutical Services Divisions. As a result of these changes, Dr. Maclure was not named in the contract between the Ministry of Health and UVic. According to a 2010 briefing note signed and approved by Mr. Nakagawa, the PSD decided that its participation in the initiative would lead to improvement of the provincial academic detailing service and would be useful to guide future academic detailing endeavours. The clear benefit of PSD partnering and supporting ADEPT was that the province obtained an independent evaluation of the effectiveness of its own academic detailing service at a very low cost. To summarize, the evidence supports that with respect to the Standards of Conduct regarding ADEPT: 1. In 2009 Dr. Maclure was in a potential conflict of interest regarding the province’s decision to contribute matching funds to support the ADEPT initiative. 2. The nature of the Dr. Maclure’s interests were not financial. Dr. Maclure would not receive any payment from the funding, but were related to his interest in the success of the ADEPT initiative. 3. PSD decided to support ADEPT on the basis that it would benefit from an evaluation of the provincial academic detailing program known as PAD. 4. Dr. Maclure disclosed the conflict to ministry officials as required under the Standards of Conduct. In 2009 the ministry ought to have better documented the steps it took at the time to assess and address Dr. Maclure’s potential conflict of interest. 5. Regarding the 2011 contract for ADEPT: a. the ministry identified the potential conflict of interest. b. the ministry documented the steps it took to remove the conflict. c. As in 2009, Dr. Maclure was not in a personal financial conflict of interest. Rather the nature of his interest as Principal Investigator was that ADEPT include British Columbia in its pan-Canadian evaluation of academic detailing. The Ministry of Health’s interest to have its PAD service independently evaluated was similar and not in conflict. 6. We concluded that with respect to the ADEPT initiative: a. Dr. Maclure’s multiple roles as an employee and Principal Investigator on ADEPT was disclosed, condoned and supported by his superiors in relation to his involvement on ADEPT. b. Dr. Maclure’s ability to act in the public interest was not impaired by his role as the Principal Investigator on ADEPT. c. Dr. Maclure’s conduct in carrying out his responsibilities as the Principal Investigator on ADEPT could not be said to undermine or compromise the public’s confidence in his ability to discharge work responsibilities; or the trust that the public places in the BC Public Service. 14.3.2.1.4  Pharmaceutical Outlook Research Special Authority ePrescribing and eEducation The IU report says it found that Dr. Maclure was in an “actual conflict of interest” in relation to Pharmaceutical Outlook Research Special Authority ePrescribing and eEducation (PhORSEE), which the IU describes as a PSD initiative. The IU finds that two other individuals were also in conflicts of interest with respect to PhORSEE. Unlike the other initiatives examined by the IU, PhORSEE was not a ministry contract. As we described in Chapter 4, the College of Pharmacists of BC created PhORSEE after receiving a grant from the ministry. The college is a self-regulating health profession and is independent of the ministry. Once the funds were distributed to the college it had control over the disbursement of the funds so long as it satisfied the terms and objectives of the grant, which 321 322 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS were stated “to support patient safety through evidence We have not summarized PhORSEE in point form in respect based research of pharmaceutical services delivery in the to the Standards of Conduct as we did for the initiatives province.” To meet this objective the college created a above because the employees were involved with PhORcommittee with terms of reference to guide the distribu- SEE to provide their input to the College on behalf of the government as external stakeholders. For the reasons tion of the funds to support research in the area. The decisions to grant funds were made by the Registrar summarized above, the evidence as documented in the of the College. At the request of the College, Dr. Maclure meeting minutes show that the employees participated and several PSD executive directors sat on a committee in accordance with the terms of reference in relation to as external stakeholders. According to the terms of ref- conflicts of interest. erence their role was to provide “strategic advice to the 14.3.3  Report Quality Assurance and Registrar on the dispersal of grant funds.” In this role Fact-Checking they were required to review the proposals, seek advice from experts and engage with the researchers where The IU hired an outside contractor to perform quality amendments or additional proposals were requested. Dr. control on its final report. The IU Director told us he had Maclure sat on the committee in his capacity as a ministry used this contractor in the past and felt he could provide employee. As an expert in methodology, he was expected “seasoned expertise” and who was well-placed to provide to provide his opinion on the proposals and to engage with an independent “challenge” of the report’s conclusions. When we talked to the contractor, he said he did not play the researchers. In some cases, Dr. Maclure and other PSD employees a large role reviewing the IU’s evidence to ensure the perceived themselves to be in conflicts of interest with report’s conclusions were correct. He explained that the respect to their role on the committee because they majority of his work was concentrated in January and were named on the proposals or cited as authors in the February 2015 and said his role was largely limited to researchers’ publications submitted to support grant giving advice about how certain issues could be framed applications. The reason these employees were named in the report. He also said he was involved in discussions on the proposals or publications was because PSD was about the sufficiency of some of the evidence supporting structured so that their employees engaged in ministry the conclusions, but that the IU Director made the final approved external research projects in various capaci- decisions about what was included in the final report. ties. For example, PSD employees regularly engaged as The contractor told us that in his role, he had a limited “knowledge users” on external research where the min- opportunity to access or review the materials the IU had istry hoped it would be able to use the results to make in- gathered. He said he was briefed by the remaining prinformed public policy decisions. Their participation allowed cipal investigator, the IU Director and the IU’s contracted the ministry to participate in the research process to the data management person. When we asked him what extent that they could bring their branch’s perspective documents he was given as part of this review he told us: and interests to inform the process to varying degrees. What did I look at? I looked at the report, which was not really a report, it was more a working The committee established by the College of Pharmacists paper summary. Which continued to be – it was of BC had terms of reference. Those terms of reference set like a living document. … there’s a whole series out the provisions for handling such conflicts of interest. of issues around that. I saw it as a form of sumThe evidence we reviewed showed that the employees, mary working paper. including Dr. Maclure complied with these provisions. In particular, the committee meeting minutes show that in At the time it was my observation it was a good each case of an actual or perceived conflict of interest, the deal of material that was not fully developed. PSD employee declared the conflict and abstained from Some findings were clear, but not precise. Others the committee’s deliberations when making its non-bindwere less well developed. ing recommendation to the Registrar. CHAPTER 14 Regarding the report’s content he said he believed that the layout of some parts of the report risked creating the impression that the IU had uncovered more wrongdoing than it actually had. For example, he told us that he felt the IU focused too heavily on inferences that research money had been misused when there was no clear evidence that any financial wrongdoing actually occurred. In his view, greater emphasis should have been placed on the fact that there was: Given the length and complexity of the IU’s investigation, the contractor did not have enough time to familiarize himself with the facts. Consistent with the beliefs of the IU team he felt the fact that more information was not obtained from the universities impeded the IU’s ability to fully investigate the financial questions, and that “the scope limitations here are so great that it’s my job just to say what we know. To conclude based on what we’ve got.” Although it appeared the contractor performed a limited … no evidence of anyone actually receiving any quality control function in relation to the report, it was not money … or great personal benefit, like the achis role to ensure the IU met the objectives established tual – the actual nexus of the thing. by the terms of reference to “confirm or dispel” the comIn his view the IU reports should have contained a “loud- plainant’s allegations. Within the short window he had er statement“outlining that there was no evidence that in 2015 the contractor’s work could not make up for the anybody benefitted financially. He said such a statement significant challenges the IU was facing generally and in would have countered the incorrect impression he felt their report. The contractor was not in a position to redo the IU’s analysis, nor was he asked to do so. He had a the report created. limited time to review a very large volume of investigaYet he also told us that some of the wording in the report tive material the IU had gathered and understandably his reflects his suggestions that the evidence to support some recommendations were predicated on the information he of the conclusions was not very strong and that more received from the IU. restrained language should be used: In some cases I’ll say things like, “there is evidence that,” that can be – in some cases that can be one email, right? There doesn’t have to be a lot of evidence like, but there’s some evidence. And I’m not – I’m not frivolous with that, right? So sometimes you can say there is – there is evidence that. 14.3.4  Distribution of the Report In April 2015, the IU provided a draft of the report to the RCMP. In reviewing the report the RCMP completed a detailed analysis to determine whether it should start its own investigation. The RCMP report concluded that no criminal investigation was warranted. In April 2015, the IU also gave a copy of the draft report to the Deputy Minister of Health Stephen Brown in April … 2015 and met with Dr. Brown and Assistant Deputy Min[In another case] We did enough work to satisfy ister of Financial and Corporate Services and Executive ourselves that the – the concerns expressed by Financial Officer Manjit Sidhu to discuss the conclusions. the [complainant] were plausible, and the conThe IU Director told us he expected the ministry to respond clusion reads that way. Right? We didn’t try and to the report before he formally finalized the document. take that any further. We – I – I did not feel that Although the IU Director told us that Dr. Brown instructed we were – I had the information or were qualified Mr. Sidhu to respond to the report’s conclusions, both Dr. to further develop that – that as a – as a line of Brown and Mr. Sidhu denied this instruction was given. inquiry. In any event, between April 2015 and July 14, 2015, the The IU’s decision to have the final report reviewed by an ministry did not provide the IU with any feedback about external experienced contractor was a positive step that the report and, having not heard back from the ministry, could have helped the IU reach more accurate conclusions. the IU finalized its report to the Comptroller General on However, in our view, the contractor did not have a full June 25, 2015. opportunity to perform the function the IU expected of him. 323 324 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS By the time the ministry received an initial copy of the The Office of the Comptroller General and the IU play an IU’s report, it had already received extensive legal advice, important role superintending financial controls across which resulted in decisions to settle most of the wrongful government, assessing the effectiveness of these condismissal cases that had been brought against it in the trols and investigating allegations of potential wrongdoing wake of the terminations. When the ministry’s outside when they arise. Senior public servants need to be able counsel received a copy of the IU’s draft report, he advised to rely on the Comptroller General to provide it with fair, that he had serious concerns about the IU’s conclusions. accurate and reliable advice about procurement, contractCounsel expressly cautioned the ministry that the IU’s ing and related financial matters. It is a critically important report contained factual inaccuracies and could expose office. government to new legal claims of defamation if it was During our investigation we found that the IU lacked sufreleased publicly, because it asserted conclusions certain ficient resources, clear policies, adequate training and branches of government knew were untrue. performed too few interviews, all of which hampered its Although we do not know the exact date the ministry’s ability to do its work well. Although the IU team worked counsel expressed his concerns about the IU report, it hard to try to investigate this complex matter thoroughly, appears counsel gave this advice to the ministry shortly in our view the IU was unable to overcome its resource after receiving the IU’s draft report. However, the ministry limitations and other internal process gaps, all of which did not share it with the Comptroller General until July led to the creation of a report containing many inaccur14, 2015 when he was considering whether to proactively acies and incorrect inferences. release the IU’s report. When the report was completed, and later leaked to the Thus it was not until three months after the draft report had been provided to the Ministry of Health that the Comptroller General was advised of concerns about the report. The Comptroller General told us he was concerned that it had taken so long for the ministry to respond, during which time the report had been finalized. media, its conclusions created considerable doubt and uncertainty about whether the initial investigation into the allegations of wrongdoing in support of the dismissal decisions had, in fact, been correct. This increased the risk of reputational damage to those people mentioned in the report due to the seeming inconsistency between In our view the Comptroller General’s concern was rea- the IU’s conclusions and government’s public position on sonable. The delay in informing the Comptroller General the settlements. about the potential problems with the report proved to be a missed opportunity for the ministry to provide important 14.5  Proactive Steps taken by the feedback to the Comptroller General and the IU before the Ministry of Finance report was finalized. In our view the IU was deprived of the opportunity to make inquiries of the ministry about the full scope of the potential concerns its counsel had raised. It also deprived the IU of the opportunity to either revisit their conclusions before they incorrectly determined that wrongdoing had occurred within PSD, or make a notation on the report itself that its conclusions were not yet finalized because it did not yet have all of the information it would need to complete the report. 14.4  Conclusion: IU Investigation and Report The Ministry of Finance has recognized the shortcomings in the operations of the IU. In 2015, the Ministry of Finance contracted with KPMG to conduct a “strategic initiatives review” of the IU. KPMG reviewed the IU’s organizational structure, design and general business and investigation approaches. It also reviewed a sample of the IU’s investigation and monitoring cases to evaluate its investigative practices. In its May 10, 2016, report, KPMG made several observations arising from its assessment of the IU’s processes: ƒƒ General Business Practices: The IU has neither a formally documented mandate nor CHAPTER 14 strategy. In keeping with leading practice we recommend developing a formal mandate and a strategy that aligns with the mandate. ƒƒ Documented Policies and Their Use: There are few, if any, documented policies and processes specific to the IU and how it does investigations. Consistent with leading practice we recommend that documented policies and processes be developed and implemented in appropriate areas. We recognize that the future direction, and in particular the size of the team, will impact on the practicality of this recommendation. ƒƒ Resourcing Expertise: The number and experience of investigators and the timeliness of investigations are two matters that, in our view, are closely related. We heard consistently from interviewees that there is a perception that the IU is significantly understaffed, resulting in delays to the investigation and reporting process. In our view the size of the team is not commensurate to the size and complexity of the organization. Further, we recommend consideration be given to adding to the depth and breadth of experience on the team. More senior resources with significant experience would allow for more fulsome quality assurance reviews, particularly of reports.to complete an investigation by the parties and that a Memorandum of Understanding has been established to address this matter. We also recommend that consideration be given to involvement of legal counsel in investigations.12 Since the KPMG review was completed, the Ministry of Finance has taken steps to begin implementing these recommendations. Among these steps, the IU has developed the Investigation and Forensic Unit Policy and Procedures Manual, which we received in its draft form in October 2016. This manual adopts principles of fairness in its work that are consistent with the standards we would expect will be applied to their future work including: “respecting the rights of individuals, with fair investigation practices.” We consider it a positive step that the IU is working on including these principles in its policy manual. We believe this will result in more reliable investigative outcomes. We endorse the direction of the KPMG recommendations. They are consistent with our own observation that a lack of resources and a number of other shortcomings impaired the IU’s ability to complete its report in a timely manner and do so with accurate and reliable conclusions. If fully implemented, the KPMG recommendations will go some distance to addressing the challenges facing the IU. ƒƒ Outreach and Communication: Leading practice highlights the importance of consultation with individuals from various disciplines or departments in planning investigations. We heard mixed views with respect to the effectiveness of the collaboration with other departments. Generally, we heard from interviewees that collaboration with the Office of the Chief Information Officer (“OCIO”) works well, while communications and collaboration with the BC Public Service Agency (“PSA”) was identified as an area for improvement. We understand that this has been recognized 12 KPMG: Ministry of Finance: Strategic Initiatives Review of the British Columbia Ministry of Finance Investigation and Forensic Unit May 10, 2016. 325 326 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS Findings F 40 The IU investigation suffered from numerous internal process gaps including insufficient resources, lack of policies and training, and lack of substantive interviews that undermined the accuracy of the conclusions contained in the IU report. F 41 The unstructured collaboration between the Ministry of Health and IU investigations created objectivity risks. F 42 The IU had an insufficiently robust quality assurance process. F 43 The IU final report contained inaccurate statements and improper inferences. F 44 The scope limitations cited in the report were significant and limit the utility of the report. The quality assurance advisor who internally reviewed the report for the Comptroller General considered the document more in the nature of a summary working paper than a final report. F 45 The universities were co-operative and responsive to the IU’s requests for information. F 46 The Ministry of Health failed to give timely and effective feedback on the draft IU report when it was provided to them in April 2015. This was a missed opportunity for both the ministry and the IU to address shortcomings in the report. F 47 Since 2015, the Ministry of Finance has taken some steps to address the shortcomings in the operations of the IU. CHAPTER 15 15.0 / GOVERNMENT’S INTERACTIONS WITH THE FAMILY OF RODERICK MACISAAC 15.1 Introduction As we discussed in Chapter 9, the Ministry of Health investigation team directly implicated Roderick MacIsaac’s PhD research in the alleged wrongdoing, even though they had no evidence that he had done anything wrong. When Mr. MacIsaac was terminated his dismissal stated he was “unfit” for public service employment and accused him of “routinely attempt[ing] to manipulate the investigative process by providing misleading and incomplete information.” In a subsequent letter sent to him by the ministry in November 2012, the ministry told Mr. MacIsaac that he could not access ministry data in the future. Mr. MacIsaac suffered other consequences as well. Later in September, the media reported that Mr. MacIsaac was one of the individuals fired from the ministry, which meant that from that point forward his name was associated in the public discourse with the allegations of wrongdoing that accompanied the other public terminations. During the summer and fall, Mr. MacIsaac applied for other positions in government. However, he was not shortlisted or successful in any of these competitions, despite being well-qualified, because of the circumstances surrounding his dismissal. Mr. MacIsaac also withdrew from the PhD program for the fall 2012 semester. Mr. MacIsaac was found dead on January 8, 2013, and the BC Coroners Service later determined that his death was a suicide. Based on our investigation, it is an inescapable conclusion that the Ministry of Health’s investigation into Mr. MacIsaac’s conduct, the decision to suspend and later fire him, and the decision to ban him from any future access to data had a significant negative impact on Mr. MacIsaac’s well-being. Mr. MacIsaac never had an opportunity to fully understand why he was fired. After his death, his family – and in particular, his sister Linda Kayfish – continued to look for answers. 327 328 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS View main timeline Sep 15, 2012 Oct 31, 2012 Roderick MacIsaac identified in media reports as one of the fired researchers. Ministry of Health sends letter to Mr. MacIsaac demanding the return of administrative health data and denying authorization to access data in the future. Sep 30, 2014 Mr. MacIsaac’s sister holds news conference requesting an apology and explanation for her brother’s firing. Jan 8, 2013 Jan 15, 2013 Mr. MacIsaac is found dead. Coroners Service investigates. RCMP advises Coroners Service that it retrieved the “this is enough” letter from Mr. MacIsaac’s laptop. Sep 18, 2013 Oct 11, 2013 Mr. MacIsaac’s laptop is returned by the community coroner to Mr. MacIsaac’s family. The family later recovers the “this is enough” letter. Community coroner recites Mr. MacIsaac’s letter over the phone to his next of kin, with names of individuals redacted. Oct 3, 2014 Oct 8, 2014 Jul 6, 2015 Minister of Health Terry Lake apologises publicly on behalf of government. In the legislature, Premier Christy Clark apologises on behalf of government to Mr. MacIsaac’s family. Mr. MacIsaac’s sister writes open letter to the Premier regarding her concerns about the Coroners Service. 15.2  Coroner’s Investigation and Document on Mr. MacIsaac’s Laptop Ministry of Health investigation and his firing, and named a number of individuals involved in that investigation. In March 2013, the community coroner told Ms. Kayfish that those documents would be returned to the family at the end of the Coroners Service investigation. Over the summer, Ms. Kayfish continued to question why the Part of this search for answers involved the community coroner who investigated Mr. MacIsaac’s death. As part of laptop analysis was taking so long and whether she could the investigation, the community coroner took possession receive a copy of the documents already located. The of Mr. MacIsaac’s laptop, which she then turned over to community coroner sought direction on this question from the RCMP for forensic analysis. The purpose of the an- her supervisors, who confirmed that the documents could alysis was to determine whether any information on the not be released until the investigation was complete. The laptop could shed light on the manner and cause of Mr. community coroner communicated this to Ms. Kayfish and MacIsaac’s death. The RCMP examination of the laptop provided links to the Coroners Act and Freedom of Information and Protection of Privacy Act. However, Ms. Kayfish ended up taking several months. remained dissatisfied with the response and continued to Early in the coroner’s investigation, Ms. Kayfish learned seek additional information. that the RCMP examiner had discovered documents on the laptop. One document in particular, which was discov- It was clear from the evidence we reviewed that the reaered in January 2013, was entitled “this is enough” and son it took so long for the community coroner to complete appeared to be the last record created on the computer. her investigation report was the time it took to complete The letter described Mr. MacIsaac’s concerns about the the forensic analysis of the laptop. We heard evidence from the RCMP examiner who completed the forensic CHAPTER 15 analysis that he had many competing priorities, so was Nonetheless, in light of our mandate to investigate not always able to give this work his full attention. “actions taken by Government following the terminations,”4 Finally, in a conference call with Ms. Kayfish and her hus- we believed it was important to examine the chain of band, Doug Kayfish, on September 18, 2013, the commun- events through which the Coroners Service took possesity coroner read the “this is enough” letter to the family, sion of the computer and returned it to the family, with but did so with all other names that were included in that the aim of answering the questions above and determindocument redacted. The family did not receive a copy ing whether this concern was substantiated. We did not of the document (either redacted or unredacted) at that review the fatality investigation conducted by the comtime. At the direction of her supervisors, the community munity coroner or the conclusions she reached. coroner took the position that, although she could return the laptop to the family at the end of the investigation, the documents retrieved from the computer – including the “this is enough” letter – would only be released under a freedom of information request, with the names of any other individuals redacted. 15.2.1  RCMP Forensic Analysis of Laptop The community coroner took possession of the laptop on January 9, 2013, and kept it overnight in secure storage. Because Mr. MacIsaac’s laptop was password-protected, the community coroner requested that an RCMP computer forensic specialist determine if the laptop contained anyOn September 24, 2013, the community coroner advised thing of relevance to the investigation. The RCMP exaMs. Kayfish that her report had been approved for release. miner received the laptop on January 10, 2013, and on The community coroner retrieved the laptop from the January 15, 2013, he advised the community coroner that RCMP on October 9, 2013, placed it in secure storage, and he had located a document in the computer, which he dereturned it to Mr. MacIsaac’s family on October 11, 2013. termined had been created by Mr. MacIsaac on December The community coroner did not provide the family with a 7, 2012. This is the “this is enough” letter described above. copy of the letter or other documents retrieved from the The RCMP examiner completed his work on September 16, laptop. The family was, however, able to retrieve a copy 2013, and returned the laptop to the community coroner of the letter from the laptop using specialized software.1 on October 9, 2013. In an open letter to the Premier dated July 6, 2015, Ms. We investigated whether either the Coroners Service or Kayfish expressed her concern that “government, through the RCMP had deleted the document in question from the the Coroner” had deleted the document from the laptop laptop. Our investigation into this issue involved interbefore returning it to the family. 2 In their joint submis- viewing, under oath and pursuant to a summons, both the sion to the Select Standing Committee on Finance and community coroner and the RCMP officer who conducted Government Services dated July 27, 2015, Ms. Kayfish the forensic examination. We also received and reviewed and the seven individuals whose employment or contacts relevant documents from both the Coroners Service and were terminated, stated that any investigation or inquiry the RCMP. needed to consider: The RCMP examiner told us that to conduct his work, he Who made the decision to withhold Roderick Mamade an “image” of the laptop’s hard drive. This meant cIsaac’s final words from his family? Why was that he could access the contents of the laptop without that decision made? How did the file come to be altering anything on the laptop itself. It was by using this deleted from his personal laptop? 3 “image” that the examiner located the document and proAlthough we extended several invitations to hear from her, vided it to the community coroner. The examiner confirmed Ms. Kayfish chose not to participate in our investigation. to us that he placed the laptop itself in a secure evidence 1 As described in an open letter to Premier Clark. Letter to Hon. Christy Clark, Premier, from Linda Kayfish, 6 July 2015. 2 Letter to Hon. Christy Clark, Premier, from Linda Kayfish, 6 July 2015. 3 Letter to Chair and Deputy Chair, “Re: Submissions Regarding a Referral to the Ombudsperson”, 27 July 2015. 4 See Appendix A Special Directions, at para 4(c). 329 330 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS storage facility while he conducted his work. He did not use the laptop itself at any point. The RCMP examiner was not able to confirm whether the laptop was working when he returned it to the community coroner. He did tell us, however, that if the computer was working, without knowing Mr. MacIsaac’s password it would not be possible to access the files on the computer without using specialized equipment. In July and August 2015, the Coroners Service exchanged email and verbal communication with the family about how they could have come to believe that the document was deleted. These notes described how the family questioned the integrity of the information provided by the Coroners Service when they could not immediately locate the letter on the returned laptop. The Coroners Service employee who spoke with the family at this time recorded in his notes that he “discussed other alternatives that we could have considered at the time such as receiving a copy of the letter that was redacted.” When we interviewed the community coroner, who confirmed that she was the only member of the Coroners Service who had physical custody of the laptop. She also told us that she did not attempt to examine, access, or in any way alter the contents of the computer after receiving it back from the RCMP forensic examiner. Further, while the laptop was in her possession it was kept in a secure location to which no one else had access. The community coroner did not turn on the computer when it was returned from the RCMP or have Mr. MacIsaac’s computer password. incidental to the carrying out of an investigation” or is allowed under other sections of the Coroners Act or another enactment (such as the Freedom of Information and Protection of Privacy Act).5 Section 64 gives the coroner discretion to refuse to disclose information collected in the course of an investigation until the investigation is completed. This provision applies despite the Freedom of Information and Protection of Privacy Act. 6 We requested that the Coroners Service provide us with copies of its policies relevant to the release of information to the next of kin. Chapter 7 of the Coroners Service policies, entitled “File Management – Release of Information,” indicates that a final coroner’s report may be released to the personal representative or nearest relative upon request and once an investigation is complete. All other information requests are to be referred to Headquarters. The policy also sets out a matrix of responsibility for the release of information; however, it does not describe any criteria to be considered and applied in determining whether information should be released. Without clear policy direction, the Coroners Service wrestled with the issue of disclosing the letter to Mr. MacIsaac’s family. The letter was undeniably important to the Kayfish family. In the absence of a well-articulated policy direction applicable to such circumstances arrived at in advance, the Corners Service made a good faith effort to respond to the family in a manner consistent with their legal obligation. However, it is also understandable that the Kayfish family was not satisfied with having the letter read to them over Based on the evidence we received from both the com- the phone, with part of the content redacted, instead of munity coroner and the forensic examiner, we are satis- receiving a copy of it. fied that neither the RCMP forensic unit nor the Coroners In our view, the lack of clear policy direction to guide the Service deleted the document in question from Mr. Ma- Coroners Service decisions about whether and how to discIsaac’s laptop. close these kinds of materials collected during a coroner’s investigation was the primary cause of the uncertainty 15.2.2  Lack of Policy on Electronic that led to the family’s concerns. Given that personal Documentation documents are stored increasingly on password-protected The Coroners Act prohibits the disclosure of informa- electronic devices and cloud storage servers, it is importtion obtained in the course of an investigation, unless ant for the Coroners Service to develop a comprehensive disclosure of the information or record is “necessary or policy framework that takes into account this trend. The 5 Coroners Act, S.B.C. 2007, c. 15, s. 63(2). 6 Coroners Act, S.B.C. 2007, c. 15, s. 64(1)(b). CHAPTER 15 Coroners Service should develop more robust policies to We have come to the conclusion that other types provide clear guidance on the steps a coroner can and of actions should have been considered rather than firing him. What happened to Mr. MacIsaac, should take to disclose documents obtained during an of course, was a tragedy. I want to personally investigation to the deceased individual’s family or the express my condolences.8 personal representative of the estate of the deceased, including documents obtained through a review of a de- When we interviewed Minister Lake he confirmed that he ceased individual’s computer, other electronic devices or spoke with Ms. Kayfish to convey an apology on behalf digital storage services. Such policies should consider how of government. disclosure may occur in cases where a coroner has taken temporary possession of the electronic device containing In a news release issued the same day, government stated: Minister Terry Lake has asked his Deputy Minthe record. In our view, any such policy should also clearly ister Stephen Brown to send a letter conveying address disclosure of information both during and after the government’s apology to the family for Rodan investigation. erick MacIsaac for terminating his employment, given his status as a co-op student and under 15.3  Fall 2014 News Conference the supervision of ministry staff. In the letter, the government also expresses sympathy and condoland Apology ences for the stress and sadness that they have While the conclusion of the Coroners Service investigation endured as a result of Mr. MacIsaac’s death in in September 2013 provided some answers to Mr. MaDecember, 2012.9 cIsaac’s family, it did not answer the underlying questions In the same news release, government maintained that about why he was fired. “there was a series of breaches of data and inappropriate By the summer of 2014, government had settled with all use of private information … serious breaches of policy but two of the fired employees and contractors who took occurred, but some of the employment terminations were action against government after their firings. As described unwarranted or were considered excessive.”10 in Chapter 11, Mr. MacIsaac’s grievance was settled relatively early, on June 25, 2013. A reappraisal of the ex- Deputy Minister of Health Stephen Brown told us that cluded staff terminations was occurring in the context for him this was the first time the matter had moved into of the ongoing litigation through the latter half of 2013 the political realm, because the Leader of the Opposition and in 2014. Significantly however, that reappraisal did had appeared at the news conference and was “reprenot include the bargaining unit staff (which included Mr. senting … the voices of some of the people who have MacIsaac) because their grievances had been concluded been terminated.” In the three days between Ms. Kayfish’s news conference earlier. A news conference held by Ms. Kayfish on September 30, and the Minister of Health’s public apology and news 2014, caused government to take action. At that news release, there was significant discussion involving Dr. conference, Ms. Kayfish, accompanied by the Leader of Brown, the Deputy Minister to the Premier John Dyble the Opposition, called on government to issue “an apology, and staff from Government Communications and Public and an explanation” for her brother’s firing.7 Three days Engagement (GCPE) and the Premier’s Office about whethlater, Minister of Health Terry Lake offered condolences er government should apologize to Mr. MacIsaac’s family. Concerns were raised about whether, given the ongoing for the firing of Mr. MacIsaac, and told reporters: 7 Justine Hunter, “Sister of fired B.C. researcher who killed himself seeks apology from government,” Globe and Mail, 30 September 2014. 8 Tamsyn Burgmann, “B.C. Health Minister apologizes to the family of fired worker who killed himself,” Globe and Mail, 3 October 2014. 9 Ministry of Health, “Government apologises to family; reviews HR policy,” news release, 3 October 2014. 10 Ministry of Health, “Government apologises to family; reviews HR policy,” news release, 3 October 2014. 331 332 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS litigation with Dr. Rebecca Warburton, government could “acknowledge that [Mr. MacIsaac] should not have been fired.” On October 2, 2014, GCPE staff developed wording for a public question and answer document that stated, in part: … the ministry was dealing with a number of very real and ongoing privacy breaches that included the personal information of many British Columbians. Public servants were acting on the information that they had available to them to make the decisions they made and took actions at the time to stop the flow of personal data outside the ministry. However, for some of the employees that were terminated, the disciplinary actions that the ministry took were in some cases unwarranted, and we have taken steps to resolve the concerns through settlements. Ultimately, it was the Premier’s Executive Director of Communications and Issues Management, Ben Chin, who pushed the issue of an apology forward, believing that concerns coming from the Ministry of Health, particularly as they related to ongoing litigation, were overly cautious. Two minutes after receiving a message containing the above language suggested by GCPE staff, Mr. Chin wrote to John Paul Fraser, Deputy Minister of GCPE: After the October 3, 2014 news release, both the Minister of Health and the Premier also apologized through their statements in the Legislature. On October 7, 2014, Minister Lake said: I’ve apologized to Ms. Kayfish … I personally regret that the situation occurred … I sincerely apologize for the actions that occurred at that time … I should have reached out sooner. For that, too, I am truly sorry that I didn’t.11 On October 8, 2014, Premier Clark said: First, let me again reiterate on behalf of the government and myself our deepest, heartfelt sympathy and apology to Linda Kayfish and her family. It is a terrible, tragic loss to lose anyone to suicide. In these circumstances, it was very appropriate that government apologize for what the Health Minister I think appropriately characterized as very heavy-handed actions. I’m glad that we were able to do so, and I’m very grateful, as well, that Ms. Kayfish has accepted those apologies as graciously as she has.12 In the next sentence, however, the Premier went on to state, “but this is also a matter where there was a very serious breach of the public’s privacy.”13 Dr. Brown, who met with Ms. Kayfish at this time, acknowledged that government should have addressed this matter a lot earlier than it did. He said Mr. MacIsaac’s When we spoke with Mr. Chin, he told us that he was firing “had kind of gone below the radar,” but when it “shocked” to hear that Mr. MacIsaac’s suspension occurred arose on September 30, 2014 it was clear there was a so close to the end of his contract. He said, “I felt then problem: “you get the gut reaction … this is what we did … as I do now which is that Ms. Kayfish deserves noth- to a student?” He told us he felt “a level of guilt” that he ing less than our most honest sympathy and regret and had not reached out earlier and recognized that the news conference “shouldn’t have been the way she had to try apology.” to get some answers.” The decision about whether government would apologize rested with Premier Christy Clark. She explained to us The government’s decision to apologize to Mr. MacIsaac’s that she was ultimately responsible for an apology on family was the right thing to do. However, Ms. Kayfish the government’s behalf, and that she approved this one. should not have had to hold a press conference almost Never mind this crap. I’ve talked to Dyble about taking responsibility for wrongly dismissing with cause. And apologizing for it. 11 Minister Terry Lake, British Columbia Legislative Assembly, Hansard, 7 October 2014, 4541 and 4543 . 12 Premier Christy Clark, British Columbia Legislative Assembly, Hansard, 8 October 2014, 4587 . 13 Premier Christy Clark, British Columbia Legislative Assembly, Hansard, 8 October 2014, 4587 . CHAPTER 15 two years after Mr. MacIsaac’s death in order for govern- “heavy-handed,” it did not conclude – as we have – that ment to have addressed Mr. MacIsaac’s circumstances. By Mr. MacIsaac had done nothing wrong. Indeed, the Prethe latter half of 2013 there was already an awareness mier’s apology was immediately followed by a statement within government of significant concerns arising from about the privacy breaches. Had government began its the investigation. reappraisal of the circumstances earlier, then it would Mr. Chin argued convincingly that government should have been in a position to issue a more timely and better issue the apology as the right thing to do and the Premier informed apology to Mr. MacIsaac’s family and others. agreed. The public statements are clear that government Nevertheless, the fact that government apologized folwas apologizing for some of the actions taken with re- lowing Ms. Kayfish’s press conference, reflected governspect to some of the employees. There was no public ment’s willingness to publicly express its regret as to what apology extended at that time to any other person who happened in the aftermath of the 2012 investigation and it had been fired.14 While the apology to Ms. Kayfish repre- indicated a more public phase of the reappraisal. This took sented an acknowledgment that Mr. MacIsaac’s firing was the form of the McNeil Review which will be discussed in the next chapter. Findings F 48 The process followed by the Coroners Service to disclose the contents of the document on Mr. MacIsaac’s laptop to his family represented a good faith effort to provide the family with information. However, the absence of a publicly-available written policy regarding disclosure of retrieved password-protected documents located on electronic devices was insufficient. F 49 Government took too long to issue an apology to the family of Mr. MacIsaac. The apology was in response to the family’s September 30, 2012 press conference, and in issuing the apology government did not clearly state that Mr. MacIsaac had done nothing wrong. 14 As we discussed in Chapter 13, when it settled with Mr. Mattson in August 2014, government issued a news release which said that the decision to terminate Mr. Mattson was a “regrettable mistake” and that it “regrets any hardship and possible loss of reputation.” 333 334 MISFIRE: THE 20l2 MINISTRY OF HEALTH EMPLUYMENT TERMINATIUNS AND RELATED MATTERS CHAPTER 16 16.0 / MCNEIL REVIEW AND REPORT 16.1 Introduction On October 3, 2014, government announced that Deputy Minister Lynda Tarras, head of the Public Service Agency (PSA), had been asked to “conduct a review of the steps taken to investigate these allegations of inappropriate conduct and practices, and the process taken to arrive at the decision. The information gathered from this review will be used to make recommendations to improve how the public service responds to allegations of employee misconduct in the future.”1 Even though the press release said Ms. Tarras had been asked “to conduct” the review, the announcement stated that the PSA had engaged labour relations lawyer Marcia McNeil to complete the work. Government’s announcement of this review came at the same time it apologized to the family of Roderick MacIsaac “for terminating his employment, given his status as a co-op student and under the supervision of ministry staff.”2 In this section of the report, we describe how the review came about, the terms of reference and public expectations about what the review would achieve and how the review was conducted. 1 Ministry of Health, “Government apologises to family; reviews HR policy,” news release, 3 October 2014. 2 Ministry of Health, “Government apologises to family; reviews HR policy,” news release, 3 October 2014. 335 336 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS View main timeline Sep 30, 2014 Oct 3, 2014 Roderick MacIsaac’s sister holds news conference requesting an apology and explanation for her brother’s firing. McNeil review announced. Oct 8, 2014 Oct 10, 2014 Premier Christy Clark states in the legislature that the firing decisions were heavy handed and that she hopes the review will get to the “bottom of it.” Terms of reference amended. Dec 19, 2014 Oct 24, 2014 Oct 23, 2014 Ms. McNeil’s report is made public. Ms. Tarras acknowledges Ms. McNeil’s request for extension and directs her to deliver the report to the Deputy Attorney General upon completion. Ms. McNeil requests a time extension and proposes a completion date of December 19, 2014. 16.2  Discussions about a Review government would have established the review at that time, if ever. In December 2013, senior government officials had a discussion about the possibility of a review of the 2012 Ministry of Health firings. Deputy Minister of Health Stephen Brown was meeting with John Dyble, Deputy Minister to the Premier. They called the Premier’s Executive Director of Communications and Issues Management, Ben Chin, into the meeting to tell him that there would likely be a number of settlements with terminated employees over the following year, which would need to be managed from a communications perspective. During that conversation, Mr. Chin said he asked Mr. Brown and Mr. Dyble to consider a third-party review of the matter, “to at least look at why it is that there is a lack of proper procedures and protocols in place, why there aren’t checks and balances in place when an investigation is going off the rails, and how you’re going to fix that.” Emails between communications staff in the Office of the Premier and Government Communications and Public Engagement (GCPE) show that government began considering a review of the human resources practices that led to the terminations on October 1, 2014, the day after Ms. Kayfish held her news conference. The following day, GCPE developed a package of material that included the initial terms of reference drafted by the PSA (discussed below). No action was taken on this for a further 10 months. The news conference held by Linda Kayfish on September 30, 2014, (discussed in Chapter 15) prompted government to take action. Three days after Mr. Kayfish’s press conference, government announced the review. There is no indication that, but for Ms. Kayfish’s press conference, Ms. Tarras, who initially was responsible for the review, told us she was aware that the terminations were attracting significant attention from the opposition during question period. “There’s lots of pressure being put on the government,” she said. She told us that: John [Dyble] … comes to me and says, ‘I would like a review done of this, and I would like you to do it.’ And I said, well okay, but I’ll be clear though that really the only thing that I am prepared to look at is the process pieces because you know these cases are in front of the courts. CHAPTER 16 Ms. Tarras agreed to take on the review, even though she planned to retire from the public service by the end of October 2014. 16.3  Original Terms of Reference The PSA contacted Marcia McNeil on October 2, 2014, Elaine McKnight, Associate Deputy Minister of Health, about working on this investigation. Ms. Tarras and one told us about a teleconference involving her, Dr. Brown of her Assistant Deputy Ministers created the initial draft and Mr. Dyble. At the time, she was still at the Ministry of the terms of reference for the review. They were reof Health but was scheduled to become head of the PSA viewed by Mr. Dyble, GCPE and Deputy Attorney General Richard Fyfe. Rather than delving into the reasons behind after Ms. Tarras’ retirement. Ms. McKnight said: the terminations, the review and report were intended to John [Dyble] phoned us up and said he had asked inform investigative policy and practice at the PSA in the Lynda [Tarras] to go out and do this review. And to future. The terms of reference stated: be honest with you, both Stephen [Brown] and I This is a review of the public service response kind of gasped and said, ‘Don’t do this. Like don’t to allegations of inappropriate conduct, contractdo this. This is going to be challenging.’ But he ing and data-management practices involving felt that he needed to, and so then I reminded him, employees and drug researchers for Ministry of I said, ‘John, Lynda has less than a month to do Health in 2012. The purpose is to review the steps something.’ Because if I’m going there and I can’t taken to investigate these issues and the process receive that report, I can’t have anything to do taken to arrive at the termination decisions. The with it. So he agreed and he said that, you know, information gathered from this review will be the goal was for Lynda to be done in a month. used to make recommendations to improve how When we asked Mr. Dyble if the review was “an issues the public service responds to allegations of emmanagement situation,” he told us, “it became that I ployee misconduct in the future.3 guess.” He said: The scope of the review included two points: I thought we’ve got to figure out a better, like we ƒƒ the circumstances surrounding the process can’t have this happen again. And that’s when the for investigating the allegation against minidea of a review first was discussed. But it wasn’t istry personnel and the decisions and actions gonna be an internal one [sic]. I think it became taken in response to the allegations an issues management piece when it was floated out there externally. ƒƒ the practices, policies, procedures and training in place in the public service for When he spoke with us, Mr. Dyble presented the McNeil responding to complaints about government review as a response to a long-standing concern about personnel 4 how the PSA conducted its investigations. While such concerns may have existed, the evidence is clear that The use of the phrase “circumstances surrounding the government’s decision to conduct the review was – in Oc- process” suggested only a procedural review of the type tober 2014 – prompted by the need to manage the larger that Ms. Tarras had told Mr. Dyble could be done given political issue created by Ms. Kayfish’s news conference. that there was still outstanding litigation. Out of scope As we describe below, the initial terms of reference were were Ministry of Health policies and practices relating drafted and finalized within the space of two days – from to contracting and data, privacy breaches, data access, October 2 to October 3, 2014. and decisions made following the terminations regarding 3 Ministry of Health, “Government apologises to family; reviews HR policy – Backgrounder: Terms of Reference,” news release, 3 October 2014. 4 Ministry of Health, “Government apologises to family; reviews HR policy – Backgrounder: Terms of Reference,” news release, 3 October 2014. 337 338 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS settlements.5 This focus on process was echoed in an Oc… confirm the actions and events that took place. tober 24, 2014, letter from Mr. Fyfe to counsel for former Not some of the actions and events – it will conDeputy Minister of Health Graham Whitmarsh, where Mr. firm the actions and events that took place durFyfe stated that “the review is expressly not a fault-finding the investigation from when the allegations ing mission, nor is it second-guessing the termination occurred through to when the terminations took decisions. It is the process that is under review, not the place. 7 decisions that were made.” These statements created the impression that Ms. McNeil Mr. Chin, who had initially suggested a review in 2013, would provide a detailed accounting of what happened also reviewed the terms of reference. He told us he be- and why. The following day, on October 8, 2014, Premier lieved the review should have been broader in scope. Clark continued this message. She said publicly, “I’m certain in my own heart that many people were not dealt with The terms of reference were attached as an appendix to fairly … It was a heavy-handed answer to the mistakes the press release issued on October 3, 2014. that were made.”8 In the Legislature, she continued: The initial terms of reference had an aggressive timeline, It’s important that this review be thorough. It’s because of Ms. Tarras’ impending scheduled retirement important that we get to the bottom of it, and that at the end of October 2014. In order that the report be is what, by the end of October, we hope we’re completed before her retirement, the original terms of able to do.9 reference provided that “a final report will be submitted to the head of the Public Service Agency no later than We asked Premier Clark if she understood that the review Oct. 31, 2014.”6 would not re-examine the decisions to terminate the employees and that it was limited to a review of government policy. She told us that she was aware of the limited 16.4  Public Expectations about nature of the review. When we asked what she meant the Review when she said that the review would get to the “bottom of it,” she told us: The review had a dual purpose. From the PSA’s perspec… the purpose of the review was to examine the tive, the review was intended to be process-focused and method, or I guess, the quality of the investigaassist it with making practice and policy changes. At the tion that was done and whether or not it was same time ordering the review allowed government to done properly, and to take any lessons from it indicate that it had commissioned an external review of if it wasn’t done properly, and apply that across the firings. Public statements by both Minister of Health the civil service. And it did seem like that was an Terry Lake and Premier Christy Clark raised public expectimportant thing to do. ations about the scope of the review. On October 7, 2014, Minister Lake emphasized in the Legislature that Ms. Mc- When we interviewed him, Mr. Chin reiterated the PreNeil would have “a very broad mandate” to: mier’s assertion that policy changes meant getting to the “bottom” of the issue. 5 Ministry of Health, “Government apologises to family; reviews HR policy – Backgrounder: Terms of Reference,” news release, 3 October 2014. 6 Ministry of Health, “Government apologises to family; reviews HR policy – Backgrounder: Terms of Reference,” news release, 3 October 2014. 7 Minister Terry Lake, British Columbia Legislative Assembly, Hansard, 7 October 2014, 4544 . 8 Justine Hunter, “Clark admits B.C. Health Ministry firings were ‘heavy-handed,” Globe and Mail, 8 October 2014. 9 Premier Christy Clark, British Columbia Legislative Assembly, Hansard, 8 October 2014, 4587 . CHAPTER 16 Premier Clark also commented publicly about her expectations concerning the breadth of the investigation, and Ms. McNeil’s ability to speak with whoever was necessary to complete the investigation. Despite Ms. McNeil having no power to compel witnesses to speak with her, Premier Clark said in the Legislative Assembly: As the Health Minister said, the investigator has full authority to speak with anyone that she wants in the government. I have directed all members of the government, and this certainly includes myself, to speak to her if requested. I have full confidence, as well, that people who once worked for government who no longer do will also make sure that they participate, cooperate and speak with her.10 Premier Clark’s statement reinforced public expectations about both the scope of the review and the extent to which Ms. McNeil would be able to obtain evidence. Ms. Tarras was sensitive to the risk of increased public expectations arising from the Premier’s statement in the Legislature. Ms. Tarras told us that after she heard the Premier’s statements during question period, she called Mr. Dyble to express concern about the Premier’s characterization of the McNeil review. Mr. Dyble acknowledged having received Ms. Tarras’ call, but said he did not pass on those concerns to the Premier. 16.5  Conduct of the Review and Revised Terms of Reference Ms. Tarras told us that although Ms. McNeil was retained to conduct the investigation, Ms. Tarras intended to be involved in the investigative process at the outset. She explained that she understood the conduct of the review fit within her responsibilities as the Head of the PSA and that the review was not intended to be completely independent. Initially, Ms. Tarras and Ms. McNeil worked together to draft a list of people to be interviewed. Ms. Tarras told us, “the way we initially set out on doing this, it was really going to be a joint – like, I was going to sit in on the interviews.” Ms. McNeil initially agreed with the scope of Ms. Tarras’ participation in the review and Ms. Tarras participated in two early interviews. In early October, Ms. McNeil sent an email to Mr. Whitmarsh inviting him to be interviewed. Ms. Tarras was copied on the email. In his response, Mr. Whitmarsh expressed considerable misgivings about participating in the process, and about Ms. Tarras’ role in the review. He asserted several reasons why he believed that Ms. Tarras was in a conflict of interest as a result of her involvement with the 2012 investigation. Ms. Tarras responded to Mr. Whitmarsh on October 7, 2014: Our original work plan called for me to sit in on the interviews, and I did participate in two preliminary meetings with the investigators yesterday. I also planned to be in the meeting with you, hence the meeting request you received. However, given the concerns that you have raised in your email to Marcia, I have reconsidered. I do not want any perception of bias in this review. I have withdrawn from the initial stages of this process and have directed Marcia to move forward with the fact stages of this review on her own. Mr. Whitmarsh continued to raise concerns about Ms. Tarras’ role and the scope of the review, to which Ms. Tarras continued to respond. On October 10, 2014, she wrote to Mr. Whitmarsh: In light of the concerns that you have expressed … and in order to avoid even a perception of conflict of interest, I have formally amended the Terms of Reference for this review to provide that Marcia McNeil will come to a completely independent finding of the facts related to the processes followed in this case. Ms. Tarras told us that she did not believe she was in a conflict of interest but that she hoped Mr. Whitmarsh would participate if she modified her role in the review. Ms. McNeil told us that she was sympathetic to Ms. Tarras’ position because she also understood that the purpose of the review was a policy review for the benefit of the PSA. However, Ms. McNeil told us that she also felt 10 Premier Christy Clark, British Columbia Legislative Assembly, Hansard, 8 October 2014, 4587 . 339 340 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS that if Ms. Tarras’ participation was a distraction, then it effective recommendation all pointed to someone else.” 12 could impede the outcome of the review. Ms. McNeil told When we spoke to Ms. McNeil, she told us that she was us that she and Ms. Tarras both agreed that Ms. Tarras not able to conclude who made the substantive decision should step away from active involvement in the investi- to terminate the employees because Mr. Whitmarsh did gation phase of the review. not formally participate, and because she was unable to The terms of reference were revised to reflect the change compel witnesses to testify under oath. in Ms. Tarras’ role and were reissued on October 10, It became evident to Ms. McNeil early in the process that 2014.11 The original terms of reference stated that the she would need more time to complete the report than “final approach to the review will be agreed to by Marcia was allotted, and she asked Ms. Tarras for an extension. McNeil and the Head of the Public Service Agency.” The By October 24, 2014, Ms. Tarras wrote Ms. McNeil to conrevised terms stated that “the review will be conducted firm that an extension would be granted until December independently by Ms. McNeil” and deleted the reference 19, 2014. Simultaneously, the Premier’s Office was told to Ms. Tarras’ participation. The evidence indicates that of the extension request and Mr. Chin prepared a public Ms. Tarras still intended to be involved in responding to announcement confirming the extension. Ms. McNeil told the findings in Ms. McNeil’s report and in any recommen- us that she chose the date herself, based on the amount dations which might have followed. However, this did not of work left to do and her work schedule. occur because Ms. Tarras had retired from the PSA before The extension created an internal problem concerning who Ms. McNeil’s report was complete. would receive the report, as Elaine McKnight was schedAt the same time, another change was made to the scope uled to become Deputy Minister of the PSA on November of the terms of reference. The original terms provided for 3, 2014, replacing Ms. Tarras. Ms. McKnight had been a review of: an Associate Deputy Minister at the Ministry of Health in 2012. Given her involvement in the Ministry of Health The circumstances surrounding the process for investigation, Ms. McKnight was reluctant to receive the investigating the allegations against ministry report, even considering its limited scope. Ms. McKnight personnel and the decisions and actions taken told us: in response to the allegations The above reference to a review of the decisions and actions taken was replaced by a review of: The process for investigating the allegations against ministry personnel The deliverables were amended to include a chronology, rather than a review, of actions and decisions taken. Mr. Whitmarsh also told us he believed that Mr. Dyble was “in a serious conflict,” because both he and Ms. Tarras were briefed about the issue. In the end, Mr. Whitmarsh met with Ms. McNeil off the record, but decided not to participate in a formal interview. Mr. Whitmarsh’s decision not to participate in the process meant that in her report, Ms. McNeil wrote, “no one has taken responsibility for making the effective recommendation to dismiss the employees. Instead, those most likely to have made the We were at the point in time when Marcia had requested the extensions and Lynda got me involved with the discussion with Richard Fyfe and JAG and Neil Sweeney. Because there was a conversation about, if we allow the extension, who is going to receive the report? And I declared adamantly again that I was not only in a perceived conflict, I was in actual conflict, so I could not be the person to receive the report. And it was difficult because it was the type of report that, you know, it did need to go to the agency. Like, it made sense for it to be delivered there. And that went on for a couple of days and I said to Richard and to Neil, “I can’t accept this report. Like I will not accept it.” And so the decision was made to have the report go to Richard [Fyfe].” 11 It is this version of the Terms of Reference that are contained in an Appendix to the McNeil Report. 12 Marcia McNeil, Investigatory Process Review: 2012 Investigation into Employee Conduct in the Ministry of Health, December 2014, 32. CHAPTER 16 When Ms. Tarras agreed to the extension request she any disciplinary decisions were made. Finally, she found directed Ms. McNeil to deliver the final report to the Dep- that the decision-maker would have “benefitted from” uty Attorney General, Richard Fyfe. receiving a written analysis of the case before making In the course of her review, Ms. McNeil interviewed 36 any decision. people involved in or affected by the investigation. She Government accepted all 12 of Ms. McNeil’s findings. met in person with only one of the terminated employees Notwithstanding the many challenges she faced, Ms. and, as noted above, she did not formally interview Mr. McNeil prepared a credible and very useful report on a Whitmarsh, the statutory decision-maker. Ms. McNeil re- number of policy and systemic human resource issues as ceived a significant amount of material from government, set out in the amended terms of reference. including documents created by the Ministry of Health investigation team, PSA documents, and emails that the Ms. McNeil’s report identified a number of important Ministry of Health investigation team had reviewed. Ms. shortcomings in the Ministry of Health investigation. McNeil also reviewed solicitor-client privileged documents These related particularly to the conduct of interviews, from the Legal Services Branch (LSB) at the Ministry of the decisions to suspend employees without pay and the lack of meaningful opportunities for employees to respond Justice. to the allegations against them. The thoughtful findings The report was delivered to the Deputy Attorney General made by Ms. McNeil are echoed in our own report. Her as stipulated for following the change to the Terms of very helpful work has meant that many of the issues that Reference. The report was released publicly on December would otherwise have been the subject of recommenda19, 2014.13 tions have already been addressed by PSA in responding to her report. 16.6  McNeil Review Conclusions In her report, Ms. McNeil made 12 findings about the process followed by the investigation team in responding to the allegations and investigating the complaints about ministry employees.14 Ms. McNeil concluded that the investigation “was not conducted with a suitably open mind,” that suspending employees without pay was detrimental to the investigation process and that the complexity of the investigation indicated the need for an experienced external investigator. 16.7  Changes to PSA practices resulting from McNeil Report Ms. McNeil’s report was released publicly on December 19, 2014. A year later the PSA provided a report to the Minister of Finance (who is the member of the Executive Council responsible for the PSA) about changes to its employee investigation, suspension and termination policies and practices resulting from the findings made in Ms. McNeil’s report.15 Ms. McNeil also made a number of findings in relation to the conduct of the interviews. She found that the number The PSA had already taken some steps to improve its of interviewers impaired the effectiveness of the inter- practices prior to the issuance of the McNeil report. view process, that the interviews did not always provide Following receipt of the McNeil report, it made further an adequate opportunity for employees to review docu- changes in respect of its response to allegations against ments, respond to questions and provide full and fair re- employees, the conduct of investigations, suspensions, sponses. Moreover, she found that government should and decision-making processes. The PSA also introduced have provided an opportunity for employees to respond to additional training for its staff. the investigation report and any recommendations before 13 An appendix containing a chronology of legal advice provided by the Legal Services Branch of the Ministry of Justice was redacted in the version of the review report released by government but was later leaked and made public. 14 The findings of the McNeil Report are set out in Appendix D. 15 This December 14, 2015 report from Deputy Minister of the PSA Lori Halls to the Minister of Finance is set out in Appendix E. 341 342 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS The PSA changed its policy regarding suspensions without pay pending investigation. The PSA’s guideline on suspensions pending investigation now provides that: “The employer has the right to suspend an employee pending investigation if the employee’s continued presence in the workplace constitutes a serious and immediate risk to the employer’s legitimate interests.” allowing the employee to respond to the allegations, and interviewing all relevant witnesses. The disciplinary decisions checklist documents whether certain steps have been observed prior to termination, including whether the investigative report has been provided to the ministry, whether legal or labour relations advice was sought, and whether the documentation reflects a thorough assessment of all of the relevant circumstances of the case. The PSA requires that the Deputy Minister of the PSA confirm that due process was followed prior to the Deputy Minister of the line ministry terminating an employee for cause. The PSA changed its default position from suspending employees without pay to suspending employees with pay, except in certain circumstances and only with the approval of PSA’s applicable Assistant Deputy Minister, The PSA also implemented a practice that in the event of a disagreement between a Deputy Minister and the in addition to the applicable official in the line ministry. Deputy Minister of the PSA regarding the process of an The PSA also created checklists regarding investigative investigation or its outcome, the matter will be advanced best practices and implementing disciplinary decisions, to the Deputy Minister to the Premier. which must be completed before an employee can be terminated for cause. The investigative checklist refers In formulating our own recommendations, we assessed to the hallmarks of a fair investigation, including impar- the extent to which these changes addressed the systemic tiality, providing the employee with notice of allegations, problems that both we and Ms. McNeil identified. Findings F 50 The rushed development of the Terms of Reference for Ms. McNeil’s review resulted in confusion about the purpose of the review. The amendments to the Terms of Reference, time extension and change in who Ms. McNeil should provide her report to reflect this hurried process. This confusion was compounded by overly broad statements by Premier Clark and Minister Lake about the purpose and anticipated outcome of the review. F 51 Ms. McNeil’s review and report was credible and useful as to the human resources processes followed by PSA during the investigation. F 52 The Public Service Agency has made a number of positive improvements to its investigative and advisory processes in response to Ms. McNeil’s review. CHAPTER 17 343 17.0 / IMPACT ON MINISTRY OF HEALTH STAFF AND HEALTH RESEARCHERS 17.1 Introduction This chapter recounts the impacts on individuals, programs and institutions arising from the 2012 investigations. The first two parts of this chapter are about impacts as they have been felt by individuals (in section 17.2) and at the organizational level within the ministry (section 17.3). Much of these descriptions are about perceptions and the statements are included for that purpose. What the facts were and whether particular actions were or were not proper was addressed in previous chapters of this report. Having addressed those matters, the purpose of this chapter is to allow for a clear public acknowledgement, without specific attribution to any one individual, of the different ways in which those affected by and even involved in the investigation feel it has impacted them, including perceptions of the lasting organizational and public policy impacts of the events discussed in this report. In short, these two sections are not about the facts but rather about how the facts made people feel. When we interviewed him, Deputy Minister Stephen Brown told us that he was aware that the investigation impacted his organization and his employees. He expressed his desire to find ways to try to remedy the impacts and told us of certain personal steps he had already taken to engage with employees at the ministry. In addition to describing the impacts, in this section we summarize the information obtained from the ministry related to the steps it has taken or plans to take to address the impacts. We include the information on this point as an acknowledgement of the ministry’s commitment to move forward in a positive direction to remediate the impacts, a direction we On behalf of the Ministry of Health, Dr. Brown pro- support. vided us with further information about various We then describe (in section 7.4) the impacts beactions the ministry had taken to address issues yond the ministry itself. We look at how the 2012 which arose as a result of the events in 2012 and investigation has affected various research, evaluto try to remediate those impacts. Through its in- ation and public health initiatives. Many important volvement in our investigation, senior officials of the programs and research initiatives were interrupted ministry became aware of additional impacts to be or cancelled. Those interruptions and cancellations addressed. had impacts which we enumerate. 344 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS 17.2  Individual Impacts One witness described how he had applied for various jobs for which he was well-qualified on the recommendation of Each person who we spoke with in the course of our in- others in the field. He believed he was not successful in vestigation whose conduct had been investigated by the any of those competitions due to the stress he was under Ministry of Health or the Office of the Comptroller Gener- or the public knowledge about the manner in which he had al – whether directly or indirectly – described significant lost his work with the ministry. consequences. In this section of the report we describe Another witness described how the experience of the the kinds of impacts that the investigation has had on investigation had destroyed her ability to work for individuals. about three years, and with it, her ability to support her The investigation affected individuals differently. There were, however, some common themes: fear, anxiety, loss of income and resulting financial uncertainty, harm to reputation and careers, harm to relationships, and, for some, health problems. family and pay down her mortgage. This witness told us she didn’t think she and her family would ever recover financially. One former associate of a ministry contractor whose data was suspended for a long time and who had expertise in One witness told us, “I was excessively worried about working with a software program used almost exclusively being able to continue to provide for my family, my reputa- by the ministry, described his inability to retain employtion.” In some cases, the family members of the individuals ment as essentially career-ending. While the ministry under investigation had to cease their own work or edu- asked him to return to work temporarily in the early spring cational commitments to provide emotional support. As of 2013 to help transition an epidemiological surveillance one witness told us she “couldn’t keep up” her business project out of ministry control, he told us he was unable because “my husband needed me.” One witness told us to find work in his area of expertise thereafter. his spouse described him as “absent, unhappy, stressed.” Some associates of the same contractor told us they relied on that contract work as their only source of income. For one, we were told it was the sole source of support for a family of four. That individual sought alternative employment in the fall of 2012 and had at least one promising interview. However, an offer of employment never materAnother witness told us that they suffered from recurring ialized. She learned later that she and her fellow associnightmares. One witness said that she was unable to re- ates were unable to obtain government IDIR accounts, turn to the Ministry of Health building for almost a year something that would have been necessary for her to be offered the position.1 due to the anxiety and trauma she suffered. Another witness explained that the stress she incurred by being treated unfairly through the investigation process and the loss of a job she loved caused her to break down physically and emotionally and was the “tipping point” for the dissolution of her marriage. A number of witnesses related instances of colleagues – One person who did contract work for the ministry said: … [the loss of the contract] caused stress on me. locally, nationally and internationally – questioning their It caused concern. It caused uncertainty about my integrity as a result of their public connection to this matfuture. I lost 40, maybe 50 percent of my income ter and the implication that they had engaged in criminal that’s never recovered to this day … of course it conduct. They described how this affected their ability to doesn’t physically exist, but there’s a black-list in participate fully in their communities. the industry. I’m not getting the same phone calls Some of the affected employees and contractors have … since 2012 nobody’s coming to me except for cited significant difficulties finding other sources of emlittle, very small pieces of work. ployment. Some individuals described the impact of the 2012-2013 investigation as career-ending. 1 Many expressed frustration that their years of contributions to the public service or work in the public interest An IDIR is the unique identifier government employees use to log on to their workstations and access many government applications. CHAPTER 17 had ended so abruptly and negatively. One witness explained how his experience with the investigation had undermined his belief in the values of the public service. Another witness told us, “I lost faith in the government … when it’s your own government that’s really unsettling. Not just any government. This is a government in Canada. This is Canada.” Another witness expressed how “hard it is to raise teenagers to believe in government when this is going on, and we had a house full of teenagers at the time that this is all happening … and they are interested. How do you defend the role of government when this is going on?” fears being accused of wrongdoing again. Instead, others who work for him access the data. We sought to understand why the investigation had such a profound impact well beyond the initial individuals it targeted. Below we describe two key factors that witnesses repeatedly described as contributing to the significant impacts of the investigation. 17.2.1  Manner of Investigation and Decision Making Many affected individuals we spoke with acknowledged that the ministry could have ended their employment withOther witnesses we spoke with expressed continued out cause by providing notice, or for contractors, in accordfrustration with how they had been swept up in the in- ance with the notice provisions set out in the contract. That the ministry chose not to do so and instead asserted vestigation. One explained: that individuals had engaged in wrongdoing, without pro… to lose my source of income for nothing that I viding details of what that wrongdoing was, amplified the had actually done when I had actually been workindividual impacts of the investigation. ing very hard on the projects I’d been working on As we have described throughout this report, the min… I was putting lots of energy and effort into the istry provided little or no information to people whose work I was doing at the Ministry of Health … I employment or data access was suspended, who were just did not want to put in any more time or effort. interviewed, who were dismissed from their employment A contractor related that despite both the ministry and Statistics Canada repeatedly telling their firm that their or whose contracts were terminated. In the absence of work was greatly improving the information government such information, people wondered what they could have used to make health-related decisions, the speed with possibly done wrong. which the contract was suspended made him question just how important it had all really been. One witness described spending “months, and months, and months, trying to imagine” what the wrongdoing could possibly be. One witness explained how in the absence of a clear explanation of possible wrongdoing, he second-guessed his own past actions and felt a sense of responsibility for others who had been affected. We heard how stopping one long-standing program impacted the careers and finances of the individuals engaged with the initiative. The contractors who worked on that program told us they had lost income that they were not able to replace, and employees of the subcontractors lost An associate of one of the contractors described in Chaptheir jobs entirely because their employment was com- ter 12 whose data was suspended related to us: pletely tied to this initiative. Because the contract was not It was never communicated and no one ever, ever, renewed due to the investigation, these individuals never communicated to me that there would be implilearned what it was that perhaps they were alleged to cations for my future data access as a result of have done. They were never able to defend their reputamy, and I’ll put in air quotes … ’involvement’ in tions. They recounted the emotional stress that resulted this which … was peripheral. I used aggregate from the uncertainty and reputational harm. level data. It was ridiculous. That I won’t put in air quotes. One researcher who relies on access to ministry data to conduct his work told us that he remains afraid to connect Another individual whose contract was suspended told to the ministry’s system, and has not done so, because he us, “nobody ever, ever, ever clarified [how] any kind of suspension was authorized or legal.” 345 346 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS One individual whose work in the ministry ended as a result of the investigation told us, “there was just a void of information. No one was really told why. It was always just there was this tip, anonymous tip, something about contracting and data. That is the most we got.” Another witness who had been interviewed by the investigation team told us how they “heard absolutely nothing… nobody could find out anything” and in the absence of information spent months speculating about what could have gone wrong. This witness talked about the “extremes that your mind goes to when you can’t make sense of what’s going on.” Another described a perception that, “it wasn’t just dangerous to work with us. It was dangerous to even just to be associated with us …” One witness described how, upon receiving a data demand letter, “it felt like they were going to swoop in, scoop everything up, break the front door down if they had to … we were just terrified from that point forward.” The fact that there is a significant power imbalance between government and the affected individuals compounded the effects of a lack of information. As one witness commented, government “had unlimited resources on their side. We had very limited resources on our side.” 17.2.2  Public Statement about the RCMP Referral Even those who were not connected to the public announcement, and who had not been part of the initial investigation, told us they wondered “if the RCMP were going to appear at the front door and remove all the computers from our home.” This witness told us, “I was surprised how stressed I was” and decided to end all ties with the ministry. When she made the decision she felt: … a sense of relief because then I felt like I was a little bit removed from, you know, if I tell myself that it doesn’t matter to me then, I think if I was pinning all my hopes on getting back there and getting data again it would have continued to be more stressful. Following the initial media coverage and the government news release, this matter has remained in the public sphere. In addition to continued media attention, matters relating to the investigation were publicly reported on by the Office of the Information and Privacy Commissioner and as part of the McNeil review. Issues relating to the legal proceedings were the subject of media attention and government press releases. The leak of the Office of the Comptroller General report gave renewed life to allegations against some of the employees. Similarly, our investigation and the release of this report will continue to keep this matter in the public domain. 17.3  Ministry of Health Impacts The decision to refer publicly to police involvement contributed significantly to the negative impacts we have de- Throughout our investigation, we spoke with current and scribed above. It created a sense of fear and undermined former Ministry of Health employees, including Deputy Ministers and the senior executive, Executive Directors, people’s reputations in the community. Managers, Policy Analysts and others. These ministry One of the fired employees told us, “we were always employees consistently described the ways in which the scared … when the doorbell rings, I get a jolt of I’m scared investigation and the events which followed affected their … I never used to feel that way. It’s just very bizarre.” This workplace. In this section of the report we describe the witness described how another fired employee returned effect that the investigation created amongst employees home from work to see police cars on his street and at the time and the resulting impacts of the investigation thought the RCMP had come to arrest him. This witness on employee productivity, particularly amongst those continued, “we were all petrified. I had nightmares for who handle or work with data. We also describe some of months.” the ways in which the public servants who were part of Another witness whose data access was suspended told the investigation team told us they have been affected. us, “I worried about the Mounties showing up at my door We describe what this has meant for the organizational for a long time. My lawyer was sufficiently worried about culture of the ministry. We also describe the impacts on it, too, because he gave me instructions in case they did.” evidence-based decision-making within the ministry. CHAPTER 17 17.3.1  Ministry of Health Staff During the 2012 investigation, the Ministry of Health investigation team was physically situated within the ministry, amongst staff who were under investigation. This caused distress for some employees. One employee who assisted with the investigation described his view of the problems that arose as a result of where the investigative team was situated: The spaces that we were using allowed for a fair bit of noise bleed, if you will. People may have heard snippets of conversations from the rooms, perhaps laughter and other kinds of expressions that they would have found perhaps unsettling or disturbing. And so I don’t believe that our presence there was a good experience for the … division, especially for the people who were closest to those spaces. Perhaps not surprisingly, we heard that people found it difficult to work under such circumstances. One person we spoke with said that having colleagues investigate one another created “deep scars” that still exist today. After seeing well-respected colleagues interviewed and then dismissed or otherwise disciplined without explanation, some employees became fearful that their conduct might come under scrutiny. The lack of any meaningful explanation about what happened during the investigation in the time that followed perpetuated a sense of fear and risk aversion that, according to many who we interviewed, continues to this day. because there wasn’t a clear explanation of what had been done … kind of panic almost set in with the number of individuals. Lots of people work… in the data analysis area. And so the feeling was  people would say, “Like, my god. What did they do? I do the same kind of work as they do or they did, and I don’t understand and so am I going to be next?” There was also… quite a concern around… feeling and the tone of the investigations. An Executive Director that we spoke with gave evidence that her staff feared that they could lose their jobs. She said that these fears were echoed in other branches at the ministry: … it was a very emotional time for staff. Yes, I did talk with my colleagues and peers about the feelings about all of this and what was happening and the fact that we didn’t know anything. We didn’t know what the allegations were. We didn’t know what was happening. And there was  from certainly the conversation I had with my colleagues, there was a lot of emotion, disappointment, fear, concern, helplessness. Feeling of not really knowing what to do about it. And fear was probably the biggest emotion, I would say. People just didn’t know what was going on. And … [employees had] huge fear of their own jobs. Because it wasn’t known what had happened. And so that just creates fear. When you don’t know, you become afraid because it could happen to you because you don’t know. Moreover, executives in the ministry were often unable to reassure their employees that they were “safe” from the investigation as they themselves did not always know A different Executive Director told us that staff continue what had led to the suspensions and dismissals. One wit- to worry about job security, four years later: Like, if someone is let go for another reason, ness, who was a senior executive in the ministry at the everyone just starts, “Holy cow, what’s happentime, gave evidence that the lack of information about the ing?” Must be the investigation all over again and investigation, the manner in which it was carried out, and it brings up scars. the subsequent terminations, fostered a climate of fear amongst some ministry employees: We heard that the investigation and subsequent terminations particularly impacted ministry staff who worked … so many people were afraid because they didn’t with data. We were told that fear caused some people actually know what happened and why people who worked with data to get less work done. They did were let go … [a] number of these individuals had not know why people were being terminated, and were worked with the ministry for a very long time. So afraid to work with the data because they suspected it they were, you know, known individuals. And so 347 348 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS may jeopardize their employment. We were told that this gold standard … It is inefficient because you can’t created some organizational paralysis because employfigure out where the data is, it’s not accessible to ees were afraid that their actions could be reviewed or everyone, you have to go through a [programmer] impugned by the investigative team. One of the Executive to touch the data and you don’t necessarily get Directors that we spoke with described the problem as the right answer. follows: An Executive Director gave more general evidence about People didn’t want to do their jobs. They didn’t her view of the impact of the investigation and terminahave any idea. They were scared that they were tions on the productivity of staff who worked with data: – I mean people saw all their colleagues being The fear through my staff was huge. So I had at fired with no explanation. Like, there was no real that time data analysts who were pulling and detailed explanation about what happened. I sharing data with all the other data sets, and the mean, I think it still exists to this day, people are fear was basically, “Should I put my pen down concerned about it. and not do anything because I could be next?” We heard this from many of the individuals we interviewed. One Director told us that the approach to sharing data between offices is simply, “don’t let any data go out the door because that’s the safest way to actually handle it.” Another Director related her opinion that even for management it is often “impossible to get data to do your job.” Some complained of administrative hurdles to access even aggregate data while others complained about the confusion that persists regarding what is, or might be, considered personally identifiable data. And that was real and palpable. It was a very, very challenging time for the staff. So and I couldn’t help them. … I would agree that there was an impact on productivity. Any time you have that kind of emotional experience for people, absolutely, it has an impact on the workload and workplace, the culture and the environment and just the feeling of negativity. All of those things would have a negative impact. We heard that the sudden removal of a particular software tool left a gap in the ministry’s data accessibility. She told us that following the investigation the ministry That software had allowed ministry employees to access sought to review and improve existing policies and pracspecific useful datasets which did not contain personally tices with respect to data access and that the ministry’s identifiable data. The removal of the software has made efforts resulted in improved clarity for staff. Nonetheless, it necessary, in certain situations, for employees to work she said that “there still is an underlying fear about data with raw data to come up with the same information. As sharing and data access. And I can’t quantify what the impacts would have been to productivity, but it was real.” one senior executive explained to us: Later in her interview with us she explained: [The Ministry has] spent millions and millions and millions on these databases and they still have not implemented a system where you can link between those databases and not use a PHN … So the structure of the database has never enabled analysts to do their work using anonymized PHN or any other client identifier. … [The removal of the software] means that if you go ask [a] question to three different people, no one knows where the answer is and all three people could go count differently … there is no I mean, to me, in general, really, staff are very worried. The people who generally work with data are very analytical, detailed … They are very, very process people. And they like to get things right. They don’t like to do things wrong … And so they’re very, very conscientious to doing the right thing. And so I find, in general, the staff are very conscientious in this area to the point, actually  to the point of actually putting the pen down and not wanting to do anything because they’re not clear, right? So they actually slow work down because they’re trying very hard to get it right. CHAPTER 17 When we spoke with one Director about the challenges her staff face today with obtaining administrative health data, she explained that the investigation and its fallout have significantly impacted the ability of her staff to do their jobs: … basically you’ve gone from we’re all in it together, we’re trying to do a job good, we’re going to do our job, you know, as a team, regardless if you’re in the division that I’m in or not, to even if we’re in the same division I’m not sure what’s going to happen to me if I share any personally identified data (internally) … you can’t even get unidentified data … the end effect is I would say that if you ask most people at my level or higher at the ministry that it’s impossible to get data to do your job. And that in part, it’s due to the scandal. … it was very intimidating and scary for anybody that had anything to do with data, going, okay, where is it going to go next? And who is going to be on the hot seat next, and who is going to get fired and have their career destroyed? An Assistant Deputy Minister echoed this view that both employee fear and the contract and data suspensions negatively impacted her employees’ productivity: They didn’t – the data wasn’t there, so that they could use it. So there was delays in getting data. There was also, like, a total – I mean, they were risk-averse to begin with. But they became even more cautious about, you know, not doing anything that would get them in any trouble, which was practically anything at that point. They were really worried about – people were worried about, you know, they would be next. that’s kind of a mutual reciprocity going on there. And then suddenly to be just pulled out of that and treated really brutally, like bullied, and really brutally. And I think that the people who I was involved with never recovered from that. They’re still kind of reeling and they don’t have anywhere near the commitment to the ministry that they used to have. He explained that “people left. A lot of people left. Everybody [doing data analysis] will tell you they haven’t recovered.” In addition to the impacts on productivity, the investigation and the terminations caused some employees to lose faith in senior leadership at the ministry and in the government as their employer. This theme emerged consistently in the testimony of employees and the executive. An Assistant Deputy Minister described the loss of confidence that her staff experienced: So from a productivity – it was definitely impacted, and reputationally, and I think emotionally, our staff were really – and just like total distrust in management. Which not that that’s always a problem. But it was – I’ve never seen such low scores, and it was, you know, I felt personally bad, to be leading an organization that was so distrusted by its staff. It’s not something that makes you proud. The current Deputy Minister of Health told us that ministry staff are angry with the executive about how the investigation was allowed to unfold and that a lack of trust in the executive has resulted. One of the Executive Directors that we spoke with told us that she is “the face of government” to her staff and that she has to “pretend We heard that the impacts of the organizational uncer- that the Public Service Agency and government are a fair tainty about data access extended to contractors doing and good employer” but that is not her experience. data analysis. A witness described that “people are so We heard from a Ministry of Health employee who atscared… they go backwards right? You don’t want me to tended some of the investigative team’s interviews in her link data? Sure. I won’t link the data. Right? So the whole capacity as a union shop steward. She told us that as a analysis is moving backwards now.” result of the manner in which the investigation at the One employee explained how those not directly under investigation had felt the impacts: … everybody feels they have a job, you do a good job and your employer’s going to value you and Ministry of Health was carried out she has lost motivation at work and quit her role with the union. She said bluntly that she does not believe that anyone within the ministry 349 350 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS cares about the employees, and that she believes her view is widely shared amongst her colleagues. 17.3.2  Investigation Team and DecisionMakers The investigation team and the executive who were involved in the investigation and the terminations have also been affected. While the impacts on the employees involved in the investigation are different from those who were disciplined or fired as a result of the investigation, they should not be ignored. Certainly, no employee expects that their work will become the subject of repeated reviews and investigations, or make headlines in the press for years to come. We heard evidence that the ongoing public scrutiny of the investigation and the terminations is a source of great stress for those who were involved in conducting the investigation and who made decisions as a result of that investigation. [The McNeil review] felt like such as scapegoating exercise, like we know there were massive problems with the investigation so let’s just focus it on that and hope it all goes away, meanwhile we’re going to let these four people who you know did the investigation, who overall are low men on the totem pole, we’re going to let them publicly bear the brunt of everything that went wrong with no accountability for people making the decisions and setting the terms of the investigation … … I take a lot of responsibility for, for my part in [the investigation] but overall it was, it was doomed to fail, not because of the investigators, because of all of the circumstances and the way it was handled, and the fact that decisions were made prior to even going ahead with the investigation, and all of us … felt like we just got hung out to dry … Some of the actions of the investigation team were the subject of Marcia McNeil’s review. The conclusions In addition to the formal reports and legal proceedings, reached by the investigation team and executives were the people involved, including the investigation team and also at issue in the wrongful dismissal lawsuits and decision-makers, have been identified in the media and grievances, and were reviewed by outside counsel for on social media over the last number of years. the government. Some members of the investigation team 17.3.3  Long Term Impacts on the Culture at gave evidence about their role in the investigation to Ms. the Ministry of Health McNeil, as part of the litigation, and to us. These reviews constitute an exhaustive and repeated exploration of the A consistent theme from the evidence described above is steps that they took. It cannot be said that the investiga- that the culture at the Ministry of Health was damaged tors and decision-makers have been allowed to brush off by the events of 2012 and subsequent years. The current their mistakes and move on. Their conduct has been the Deputy Minister of Health told us that a kind of trauma subject of rigorous and repeated analysis over the past has resulted within the ministry. Several witnesses gave evidence that the investigation had left a “scar” on minfour years. istry employees. An Assistant Deputy Minister we spoke We also heard from members of the investigation team with described the investigation and resulting decisions that they believe that government has allowed them to un- as a “stain” on the ministry: fairly shoulder the blame for what occurred. One member … it had a very strongly negative impact in terms of the investigation team told us that she viewed governof morale, ability to get work done, and … for me, ment’s approach to the McNeil review as “hey let’s throw personally, I had to go in front of my staff mulall of you guys under the bus and let you carry it and hope tiple [times] – like every time something would that that makes it go away.” She told us that although she happen I would have a standup to tell my staff, viewed most of the findings in the McNeil review as fair, like when Roderick committed suicide and there she felt that the limited terms of reference resulted in the was a couple of incidents because I wanted them investigation team bearing a disproportionate share of the to hear it from me. And I always said to them I blame for the errors that were made: don’t really know what happened but I have faith in the process. We have a really solid process CHAPTER 17 here in government and like I just felt personally betrayed … ... And so what had ever had happened … I felt confident had been followed and it wasn’t. So that to me, in addition to all the suffering that the people that were part of the reviews experienced, I think it was negative for people in the public service as well. Because we’ve all, especially at the Ministry of Health, been stained by it. Deputy Minister to facilitate an environment of open communication and collaboration across the ministry. Among other initiatives the ministry also launched the “Ministry Checkup” which is a tri-annual week-long process aimed at improving communication and engagement. Work is being done to develop a “How We Work” initiative in the ministry to promote working across and within teams. A number of factors have impacted the ministry’s ability to fully address the damage to its organizational culture: the extended time it took for the leadership in the ministry to reassess the investigative approach; the reluctance to Culture is powerful in an organization. Although the inves- discuss the matter given ongoing litigation; the legitimate tigation and the terminations occurred over four years ago, need to protect people’s privacy which limited what could and although those matters have been formally settled, be said; and the lack of a clear understanding of what as the evidence we heard demonstrates, the effects of happened. We are also aware that our ongoing investiwhat happened continue to resonate within the ministry. A gation has made it difficult for the impacted employees paper on post-conflict organizational rebuilding illustrates and organizations to move on. We hope that this report the challenges that organizations in such circumstances provides clarity with respect to what occurred and that face: the ministry and its employees can build on what they Formal or informal resolution of serious or exhave done so far and find a better way forward. tended conflict within or across organizational 17.3.4  Steps taken by the Ministry of Health units often leaves the actors … in a stressed to improve data handling and access state … [parties] must interact professionally in an environment alive with the tensions springing On behalf of the Ministry of Health, Dr. Brown told us that from suspicion, accusations, identity loss, embarthe ministry has taken a number of steps to address the rassment, resentment, anger and betrayal. Moreconcerns regarding data access. In the years since the over, because the work unit is a system, those investigation, the ministry has taken steps to improve the employees not directly involved in the conflict are security practices and protection of personally identifiable often drawn into the conflict via the general deinformation by reducing unnecessary access to identifiable partmental tension … and, perhaps most signifidata. It has done this while at the same time broadening cantly, the role these employees are asked to play access to non-identifiable data in an effort to better utilize in providing interviews, testimony, or documents what it recognizes to be a critically valuable resource. in the context of the formal investigation. ParticuDr. Brown told us that in the summer of 2016 the ministry larly when conflicts become public battles played launched a “consolidated analytics” strategy and an orout in the media or in the organizational grapevine, ganizational division to provide clarity in data managethere is a loss of privacy and often a loss of ‘face’ ment practices and analytics. The goal of the strategy is for the parties and for the organizations. 2 to ensure that ministry executives and program divisions We note that the ministry has taken important steps to receive “quality, timely, accurate and consistent informaremediate some of the damage caused by the investiga- tion and analysis that support health system performance, tion and its aftermath. It has done so by implementing an management oversight, the delivery of ministry strategic internal engagement process which included the estab- priorities, and divisional mandates.” lishment of an Employee Advisory Forum to work with the 2 Katherine Hale and James P. Keen, “The Ombudsman and Post Conflict Department Rebuilding”, Journal of the International Ombudsman Association, Vol 6, No. 2(2013): 68-69. 351 352 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS Further, in response to the June 2013 report of the In- As one employee of PSD explained: formation and Privacy Commissioner and the conclusions … the foundation is cracked … it [structure of PSD of the Deloitte review, the ministry told us it has taken prior to 2012] was just this moment in time where steps to: there was an opportunity, the window opened, we clarify roles and responsibilities with respect to had the leadership to do this type of thing and we went for it and now I think … I don’t know if data analytics and establish a related governance government would still support it because of … program all the stuff that’s happened. publish a privacy policy and establish mandatory training for employees improve processing times for health research centralized through PopDataBC’s secure research environment implement standard security roles and technical controls for Ministry of Health employee and contractor data access through Ministry of Health’s Data Warehouse By no longer having academic researchers internal to the division in a liaison role, we have been told that the division’s knowledge exchange capacity that was facilitated by people familiar with both PSD’s needs and priorities as well as research processes has diminished. The ministry informed our office that it is in the process of rebuilding some of this kind of knowledge exchange work outside of that division. Through its reorganization, the ministry created the new Stakeholder Engagement, Together, these measures provide improved clarity about Research and Innovation Division and have advised us appropriate data access and use. As such, we recognize that it has a strong evidence-based mandate. We were the significant and commendable work done by the min- informed of plans to use research as a means to inform istry and its staff. the division’s decisions, including collaborating with researchers, industry and health authorities. The ministry 17.3.5  Evidence-Based Decision Making in the also informed us that it will also have a senior pharmacist Ministry from the Medical Beneficiaries and Pharmaceutical SerThe effect of firing individuals in Pharmaceutical Services vices Division (the former PSD), working closely with its Division (PSD) and suspending data access to employees new research function. In addition, the ministry told us it and contractors was to dismantle a significant part of the continues to engage with research organizations to obtain evidence-based work that the division was supporting. independent evidence on pharmaceutical evaluations and The change in the programs delivered through or sup- to foster pharmaceutical related education. ported by that division was not based on an assessment of whether those programs were effective and meeting their deliverables. It was also not based on an assessment 17.4  Impact on Research, of whether these programs were providing information Evaluation, Educational Initiatives that allowed the ministry to more cost-effectively manage PharmaCare. For the programs we identify earlier in this and Public Health Epidemiology report, it was simply the inevitable outcome of the Min- and Analysis istry of Health’s employment and data decisions. Witnesses we spoke with who had worked in PSD said In the following sections of the report we discuss the that before the investigation it was an exciting place to impacts of the 2012 Ministry of Health investigation on work with excellent employee morale. In 2012 the Policy the researchers who engaged in various research, evaluOutcomes, Education and Research Branch was recog- ation, educational and public health work and whose data nized as one of the ten best places to work in the B.C. access had been suspended. We cover the impact on sevPublic Service based on the previous year’s employee eral initiatives that we have discussed at length in other sections of the report. Its purpose is to provide examples engagement survey results. CHAPTER 17 of the impacts of the investigation on health research, evaluation, education and surveillance in the province. In discussing the impacts on various programs, we are not suggesting that all ministry sponsored health research came to a halt in 2012. The work that stopped represented only a portion of the engagement of the ministry in health research in B.C. The ministry continued to engage in other research and areas focused on safe patient care. 17.4.1  Data Access Requests from Impacted Researchers When making a data access request (DAR) to the ministry, external applicants are required to disclose the names of individuals associated with their projects regardless of whether or not those individuals will access ministry data themselves. One project intending to study the impact of maternal drug exposure on infant and child health development was denied access to data while the investigation was underway due to the identity of an individual whose data access had been suspended being listed as a research associate. Unlike with some DAR requests, the ministry did communicate this to the applicant who subsequently took steps to ensure the individual would not access any data on the project and adjusted the proposal accordingly. As the Chief Data Steward then clarified: Principal investigators are authorized to collaborate with experts in their field on their statistical approaches – either before, during, or after the work is executed, without granting access to the research data itself. However, data was still not released to the project. As is detailed in previous chapters, shortly after the in- Another project that was already underway in 2012 was vestigation began the investigators identified a number of studying the education, health and wellbeing outcomes individuals who they believed should not access ministry of children born to immigrant and refugee families. The data while their review was underway. This list quickly project which was being conducted through a research expanded to include not just the principal targets of the agreement with the province was described as follows: investigation, but also analysts and contractors peripheral … this study will afford the first comprehensive to the work done by the core group under scrutiny. Those picture of the forces that influence the lives of individuals were effectively barred from being involved immigrant children and provide a strong evidence in any projects where the ministry’s administrative health base for the BC Settlement and Adaptation prodata was to be used, regardless of whether they would gram as well as furthering the objectives of the actually access the data or not. For reasons explained Canadian Children’s Agenda more broadly. elsewhere in this report, this practice was improper as the decision to suspend data access was, in many instances, When the project lead submitted a new DAR in November made in the absence of any evidence that it was being 2012, its ethics application listed an individual whose data access had then been suspended as a study team member. used or accessed inappropriately. When the Chief Data Steward was made aware of this, Our investigation heard evidence about some instances where DARs went unapproved without explanation from the DAR was placed on hold. Despite the lead researcher the ministry. One data analyst who had worked for Blue subsequently writing to the ministry to explain that the Thorn Research and Analysis Group Inc. explained to us individual would not be accessing any data in his role that subsequent to the collapse of Blue Thorn as a result with the project, the DAR was not approved before the of its contract suspension and default termination, she project was cancelled in February 2013 because the lead was listed on two academic DARs that went unapproved researcher had passed away. without any explanation. On a hunch that her previous work with Blue Thorn might be the cause of the delays, she called the ministry’s data access office to inquire if this was the case. Her hunch was confirmed. She was told that if she removed her name from both applications they would be approved. A project that listed another individual whose data had been suspended as a co-investigator received similar treatment. The project, designed to study the impacts of psychotropic drug use during pregnancy on the health of newborn children and infants, had its DAR placed on hold in November 2012. When notice of the hold was 353 354 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS communicated to the lead researcher, no explanation for the decision was provided. The lead researcher twice wrote to the ministry asking for clarification and offering to accommodate the ministry’s requirements to allow data access to proceed. The first of these letters explained: I would like to discuss this situation with you as I am very concerned and puzzled by this decision. I do not understand why I and my co-investigators have been refused access to data to carry out this research on a class of medications that are being used increasingly often in pregnancy, and for which there are serious safety concerns.  Data access was not granted for this project until February 2014. 17.4.2  Therapeutics Initiative work and funding In part because of this, under the 2014 agreement the TI was required to submit more detailed work plans to the ministry for pre-approval. Similarly, although the TI had historically submitted its articles to the ministry prior to publication, the new agreement contains provisions that reinforce the ministry’s ability to review the TI’s proposed publications in advance and review the underlying data the researchers relied upon in reaching their conclusions. Perhaps the largest structural change was the creation of a new contract management committee. The committee, which is comprised of members of both the UBC Faculty of Medicine and the ministry, is empowered to direct the TI’s commissioned contract work through the establishment of terms of reference, working groups and the development of other resources to govern the TI’s work under the contract. When we spoke with Dr. Dormuth he emphasized the The government’s October 22, 2013 announcement that fact that the TI had historically viewed its relationship it was taking steps to reinstate its contract with the Uni- with the ministry as a partnership in which they collaborversity of British Columbia’s Therapeutics Initiative did ated to ensure the relevance of the TI’s work to ministry not resolve the ministry’s ongoing concerns about the TI’s objectives. He also noted that the functioning of the TI’s data access and use. Although the ministry still had no prior agreements with the ministry allowed them conevidence that Dr. Colin Dormuth or anybody at the TI had siderable independence to raise public health issues that engaged in wrongdoing, one of the direct outcomes of they believed would benefit the ministry and to meet the the ministry’s investigation was that the ministry took deliverables established by their contract. Dr. Dormuth additional steps to restrict the TI’s ability to access data told us that the way their relationship functioned changed and curtailed the TI’s ability to provide input to ministry significantly under the new agreement: decision-makers. Just to point out to you, the original schedule A As we discussed in Chapter 12, the TI’s March 2012 contract amendment was completed contemporaneously with the ministry’s receipt of the initial complaint to the Office of the Auditor General. As a result, one of the initial impacts of the ministry’s decision to effectively suspend the TI’s contract between July 2012 and February 2014 was that the TI did not have an opportunity to work under the 2012 agreement for very long before its work was suspended. was the basis under which we did all the work up until – essentially until the scandal happened, right, because we were operating under that old schedule A up until March 31st, 2012. I mean, one of the things … there was basically a clause saying we would do our work at arms-length through the government which we always interpreted for the 15 years before that as meaning the government will not interfere. So that was taken out. Prior to restarting work in 2014 the ministry indicated it wanted to amend the TI’s contract again to address its lingering concerns. The specific amendments to the TI’s agreement reflected the ministry’s ongoing concerns about data access, intellectual property and publication rights, and work planning. The amendments also reinforced the ministry’s intent to have a greater say in the TI’s activities. And then there were clauses in here that we used and it was never an issue before the scandal… He also felt that the TI’s relationship with the ministry became unworkable because the ministry was unwilling to approve the suggested projects the TI brought forward. As he told us: CHAPTER 17 But the idea even with this new schedule A was that we would sit down together with the ministry and discuss what projects we could do and choose them together and we do sit down but – for the first two years I guess after the restart it was just unworkable. The things we would say we thought we could work on and were important, almost every single time were declined. And the projects we were sent were I would classify as pretty useless. The changes to the TI’s agreement have, in the view of the TI, negatively impacted the TI’s ability to independently highlight important public health issues. Dr. Wright told us that several potential studies, including a study about the smoking cessation program, had been proposed to the ministry but were ultimately rejected. Dr. Dormuth told us he encountered situations in which the ministry asked the TI to undertake a study and expend the associated resources, without first knowing whether sufficient data would make the work feasible. the two parties to the relationship need to continue to rebuild trust and effective working relationships. 17.4.3  Alzheimer’s Drug Therapy Initiative The ministry received the final Alzheimer’s Drug Therapy Initiative (ADTI) report in August 2015, almost eight years after former Premier Gordon Campbell pledged government’s commitment to advancing scientific knowledge of Alzheimer’s disease care.3 As the ADTI researchers noted in their report, all research conducted in the “real world” will be impacted by outside events as they unfold during the course of the study. In this case, by 2012 the ADTI had already been affected by unanticipated events, including the B.C. Medical Association’s initial reluctance to participate in the study and delays in the ministry approving of the researchers’ data access. Unfortunately, these unanticipated challenges were compounded when as part of its investigation, the ministry suspended the researchers’ data access and contracts. These suspensions interrupted the ADTI at a critical juncture. As a result, even in situations where the ministry asked the TI to investigate certain questions, the TI told us its The suspensions adversely impacted the researchers’ abilability to do so is limited because it lacks the independ- ity to address all of the questions they sought to examence to assess whether the project is feasible and wheth- ine. For example, in the final ADTI report the researchers er it is actually able to contribute to a constructive analysis noted that portions of the study were lost because of the contract suspensions. They specifically cited the loss of that will benefit the province. the part of the ADTI study that was intended to develop Given the length of the TI’s contractual relationship with clinically meaningful measures for evaluating dementia the ministry it is unsurprising that the ministry’s needs and therapy. expectations changed over time. These changes were reflected in the six amendments to the TI’s contract between Of equal importance, the ministry’s actions negatively 2004-2014. The ministry’s decision in 2014 to decrease the impacted a central goal of the ADTI, which was to build TI’s independence and curtail its ability to provide mean- formal bridges between the pharmaceutical industry, paingful input to ministry decision-makers was based on tient groups, researchers and ministry decision-makers ongoing concerns arising from the 2012-2013 investigation. to develop PSD’s “coverage with evidence development” model. This model was intended as a test vehicle for The ministry points to a number of helpful signs that the refuture collaborations toward evidence-based policy delationship with its TI is on the mend. A change in ministry velopment. The history of the ADTI demonstrates that executive responsibility for liaison with the TI, the willingthe ministry wanted to develop avenues for collaboration ness of the ministry to entertain new grant proposals from between researchers, patient groups, the pharmaceutical the TI and the Reference Based Drug work being done industry and its decision-makers to inform drug listing by the TI were all identified by the ministry as important decisions and the development of pharmaceutical policy improvements. Dr. Brown does however acknowledge that more broadly. To do this the ministry spent several years 3 Neena Chappell et al., Alzheimer’s Drug Therapy Initiative (ADTI): Research Report (Victoria: University of Victoria), 12 August 2015 < http://www2.gov.bc.ca/assets/gov/health/health-drug-coverage/pharmacare/adtiresearchstudiesuvic.pdf>. 355 356 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS engaging with these stakeholder groups to find common ground that would enable a study like the ADTI to occur. Although the immediate goal of the ADTI was to address questions connected to Alzheimer’s research, the ministry’s broader goals were to test this collaborative model as a way to address complex policy questions. could not be restarted easily once the data suspension issues were resolved, which squandered the resources that had been expended getting the studies to the place they were in 2012. The ministry’s suspension and investigation of parts of the ADTI project also raised questions among researchers The lead ADTI researcher told us that the way the Min- about the ministry’s role in fostering research and trying istry treated the ADTI researchers, both in connection to implement new forms of policy development, such as with granting their data access prior to 2012 and with the “coverage with evidence development” model. Since the interruptions that occurred from the 2012 data and the ministry did not fully evaluate the effectiveness of contract suspensions, negatively impacted university re- the ADTI study model, it has lost the opportunity to learn searchers’ willingness to participate in future Ministry how the “coverage with evidence development” approach of Health initiatives. The pool of researchers available could further the ministry’s ongoing goal of ensuring qualto work with the ministry on these types of complex ity and cost-effective health services. For its part, the minquestions is relatively small. Indeed, for the ADTI it had istry says it remains open to the “coverage with evidence taken the ministry several years to persuade Alzheimer’s development” approach. disease experts to participate in the study. The lead ADTI researcher told us the Ministry’s actions created a chilling 17.4.4  Education for Quality Improvement in effect amongst researchers beyond ADTI. This decreased Patient Care the pool of available talent available to the Ministry to The ministry ceased its involvement in the Education for Quality Improvement in Patient Care (EQIP) initiative as a address public health concerns more generally. In general, the researchers in the Alzheimer’s disease direct result of the investigation and no similar initiative field did not depend on the ADTI to be able to conduct has since replaced it. While it is difficult to measure the their broader research activities. They agreed to partici- precise impacts of cancelling this initiative, it is clear that pate in the project because they could see the potential the ministry abandoned a collaborative evidence-based benefits to public policy making and to the specific drug educational initiative that was aimed at improving both listing questions at issue. Thus, the interruption of the the quality and cost-effectiveness of physicians’ prescribADTI caused the researchers to question their ongoing ing practices. The ministry and its partners in the initiative involvement with the ministry. This, in turn, wasted the had invested significant time and cost in creating prescribresources the ministry had expended cultivating relation- ing portraits for physicians. The value of those portraits was significant enough that the BCMA intended to expand ships with researchers to initiate the ADTI. their educational use to other similar initiatives. The ADTI lead researcher also indicated that the data suspensions broke the ADTI into different parts, some of Soon after EQIP started, the ministry explained the pur4 which were allowed to continue after a short interruption, pose of the project to a legislative committee: We are undertaking a project with the BCMA while others remained suspended for a longer period of and UBC on education for quality improvements time. These interruptions meant that knowledge creation in patient care that we call EQIP. That project is opportunities were lost, which could not be made up later underway now. We’ve received extremely strong on, because the ministry appeared not to appreciate that endorsement from physicians groups, and we do many aspects of the study were time sensitive or relied engage them in the detailed development of this on the researchers’ ability to engage with the targeted paprogram. tient group on an ongoing basis to ensure they did not fall out of the study. Similarly, some of the study components 4 Select Standing Committee on Public Accounts, “Reports of Proceedings, Friday, February 2, 2007 a.m.”, British Columbia Legislative Assembly, Hansard, 38th Parliament, 2nd Session. CHAPTER 17 EQIP was aimed at educating physicians to provide the best patient care while also achieving the ministry’s goals of ensuring patient safety and cost-effectiveness. EQIP provided physicians with evidence-based information about the therapeutic value or costs of a drug that they prescribe. This is information that they cannot otherwise readily access. EQIP was a recognition that physicians are often reliant on anecdotal experience from their patients, or information from pharmaceutical companies, which may be valuable but may not leave them fully informed. what was originally anticipated. As we have described above and in Chapter 12, getting these initiatives running requires a significant investment of time and money. The ultimate impact of EQIP being ended was to undermine both the collaborative relationships that the ministry had developed and the opportunity to evaluate the program’s effectiveness at meeting the ministry’s broader public health goals. 17.4.5  Atypical Anti-Psychotic Drugs Research The annual report produced by EQIP at the time the con- tract was unofficially suspended indicated that it was de- As we described elsewhere in the report, in the summer veloped as a “recognizable brand and is becoming a trust- of 2012 the B.C. Children’s Hospital-led research team ed source of unbiased, evidence based messaging. This studying the correlation between atypical antipsychotic is evidenced by the ongoing positive comments from the prescribing trends and diabetes in children, submitted feedback forms, interviews and OPUS learning sessions.” 5 an abstract for presentation at the Canadian Diabetes The evidence we reviewed overwhelmingly suggests that Association’s annual professional conference as the first there was no comparable replacement for the educational step to publishing their findings. At this point, however, the ministry’s decision to suspend the data access of Dr. materials being prepared through EQIP. W. Warburton, Mr. Scott and Mr. Hamdi meant the lead The ministry stopped the EQIP initiative before it had researcher on the project had to withdraw the abstract beevaluated the impact of the initiative on doctors’ prescrib- fore it could be presented. Those data suspensions meant ing practices. The ministry lost an opportunity to learn the researcher would be unable to access the datasets how EQIP, or an educational initiative such as EQIP, could used to conduct the research should a journal or researchbe used to further the ministry’s goal of ensuring quality er ask for work to be done to further verify the findings. and cost-effective provision of health services. The researcher explained this to us as follows: While we have highlighted EQIP in our report, other edu… the way it works is, you can submit something cational based initiatives in PSD were stopped as a rein abstract form and present it at a conference but sult of the investigation. Where these initiatives were it’s not considered acceptable literature until you not resumed, such as the ministry’s participation in the submit it to a peer reviewed journal, you have all Academic Detailing Evaluation Partnership Team (ADEPT), that reviewed, they ask you questions, they may the ministry did not meet its commitments or deliverables.6 ask you to do some re-analysis of the information, Initiatives such as EQIP are started because the ministry believes that they will benefit the health of the citizens it serves or allow it to more cost-effectively manage the health care system. Some initiatives do not live up to their initial expectations, while others succeed beyond verify your methods and I knew there was no way that I was going to be able to do any of that. And I have to be able to say I have access to the data for at least five years in case there is any question about the methodology. And I knew that I wasn’t 5 OPUS stands for Optimal Prescribing Updates and Support. This is a group of physicians who are supported by the GPSC Practice Support Program to participate in a related educational initiative based on the EQIP profiles. The Practice Support Program is a quality improvement-focused initiative that provides a suite of evidence-based educational services and in-practice supports to improve patient care and doctor experience. It is funded by a partnership between the Ministry of Health and Doctors of BC. It is an example of EQIP expanding beyond PSD - this initiative was supported through Primary Care. 6 The Academic Detailing Evaluation Partnership Team (ADEPT) was a pan-Canadian, external evaluation of academic detailing programs that was expected to include B.C.’s Provincial Academic Detailing (PAD) program. Information about the PAD program can be found at Ministry of Health, “Provincial Academic Detailing (PAD) Service,” . 357 358 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS going to be able to do that. So I had no choice but to withdraw the abstract … it was extremely embarrassing. I have never had to withdraw an abstract from a scientific meeting. And then we never published that information … As the firings of the researcher’s close associates and the possibility of an RCMP investigation were publicized, the researcher explained that she “had this terrifying vision that the RCMP was going to … accuse me of having breached someone’s privacy.” In an attempt to re-obtain the finalized data files the researcher wrote to the ministry, but never received a response. turned on people. … I thought I was doing good, I thought I was helping children and I felt like somehow peripherally I was doing something bad. It made me feel like I was doing something bad. It really made me feel stressed and guilty. I lost sleep over it. I just didn’t want to have anything to do with it ever again. 17.4.6  Drug Safety and Effectiveness Network Dr. Dormuth is British Columbia’s lead on the Canadian Network for Observational Drug Effects Studies (CNODES) collaboration. The goal of CNODES is to “use collaborative, The researcher explained to us that “all the information population-based approaches to provide rapid answers I got was from the media … I lost a lot of sleep over it.” to questions about drug safety and effectiveness.”8 By Forced to explain the reasons for the collapse of the re- conducting research using multiple healthcare databases search project to colleagues and professional bodies, the from different jurisdictions, CNODES can provide “precise researcher was both embarrassed and distracted from her estimates of medication risks and benefits”9 that can then research efforts. inform public health decisions. CNODES is part of the Approximately one year after the researcher had intended larger Drug and Safety Effectiveness Network (DSEN), to present and publish the findings of the atypical antipsy- funded by the Canadian Institutes for Health Research. Six chotics project, another team of researchers did so with other provinces have CNODES leads and together, they a peer-reviewed paper that demonstrated a three-fold contribute to interprovincial studies. increase in the likelihood of children developing diabetes When Dr. Dormuth’s access to health data was suspended if prescribed atypical antipsychotic medications.7 in June 2012, his work as the provincial lead for British Frustrated, embarrassed and disillusioned by her experi- Columbia on CNODES was impacted. This in turn impacted ence with the ministry, the researcher, a respected expert the ability of the national group to report on its work in a in the field of children’s health, has chosen not to work timely and effective way. with the ministry’s administrative datasets again. As she DSEN is structured so that researchers with access to the told us: largest and most important administrative health dataIn the long term I had a lot of hopes and aspirbases can use that access to produce timely studies. As ations related to [administrative data] … I was we described in Chapter 4, British Columbia has a robust hoping ultimately we could follow prescription set of administrative health data that makes it a useful trends over time to see if we’ve improve the apcontributor to national studies of pharmaceutical use and propriate use of [atypical anti-psychotic drugs] effectiveness. and potentially decrease the use of them to see For DSEN studies reliant on BC data, however, data deif our efforts had made a difference but I’ve been lays have meant the British Columbia components of the traumatized … I was so traumatized that if you studies have not been occurring quickly. This undermines a offered me free data today from the Ministry of core DSEN objective of making research results available Health I’d say no thanks. I just felt like the ministry in a timely way. 7 William V. Bobo et al. “Antipsychotics and the Risk of Type 2 Diabetes Mellitus in Children and Youth,” Journal of the American Medical Association, Psychiatry 70(10) (August 2013). 8 Canadian Network for Observational Drug Effect Studies, “About CNODES” . 9 Canadian Network for Observational Drug Effect Studies, “About CNODES” . CHAPTER 17 While the ministry’s 2012 investigation was ongoing, an important public health study was hampered by the data delays that Dr. Dormuth described. In the summer of 2012, CNODES was planning a study of the prescribing trends of isotretinoin (brand name Acutane) by younger women. Isotretinoin is used to treat severe and scarring cystic acne and was first approved for use in Canada in 1983. Isotretinoin is a “potent teratogen” that can cause severe birth defects such as craniofacial, cardiac and central nervous system abnormalities and can lead to spontaneous abortion. The risks to fetal development have been well known for 30 years and there are a number of published studies on the topic. As a result, women who are on isotretinoin should not become pregnant. Because of this, physicians have long been instructed to follow a stringent protocol when prescribing the drug to their female patients of childbearing age. The objective of the CNODES study was to use administrative health data to “estimate the frequency of pregnancy during and immediately after treatment with isotretinoin, the number of potentially exposed pregnancies that go to term, the number of resulting fetal abnormalities and whether these rates have changed over time.”10 Thus the purpose of the proposed study was not to comment on the drug’s safety when used by pregnant women but rather to gauge the effectiveness of the cautionary protocol in use in Canada. The resulting information would assist health officials in determining whether a “re-fresh alert” was necessary to promote physicians following established protocols. (PEG) (Dr. Dormuth’s group) at the Therapeutics Initiative, expressed concern about delays in the processing of PEG’s data applications for two DSEN-CNODES projects including the isotretinoin study. The PEG project manager’s email described that the ministry had notified PEG that these two projects would be put on hold and not forwarded to the Data Stewardship Committee for consideration without indicating who made that decision or why. The projects needed to be forwarded to the Committee to obtain data access. The PEG project manager requested that the ministry restore PEG’s data access by September 28, 2012 as PEG was required to report to the DSEN-CNODES national coordinating office about B.C.’s willingness to participate in the two studies. The project manager described to us how he had emphasized to the ministry the importance of the isotretinoin study for public health outcomes: A really, really important study coming up on the use of Accutane and pregnant women, and I specifically brought that up. With everything going on, that was a really important project to get done. I asked them if I could proceed with it. … That’s probably the most important thing – and I had all of the evidence – was that project right there. I pleaded with [the ministry] to put the investigation aside and give us the – allow us to stay for the project. We knew that that was important. And [the ministry] rejected it. So we had to wait two years for that. In a letter to the ministry dated August 23, 2012, Dr. Sammy Suissa and Dr. David Henry on behalf of the The ministry responded on September 26, 2012 stating CNODES executive, outlined their concerns about Dr. that, due to the ministry’s comprehensive review of conDormuth’s suspended data access. They noted that in tracts and data access, they would not be in a position to denying Dr. Dormuth access to data, the ministry would approve PEG’s request. in turn be denying CNODES access to BC data. The letter As a result of the data access suspensions, the CNODES noted that CNODES is central to monitoring the safety research related to the effectiveness of the cautionary of prescription medicines in Canada and that it would be protocol was delayed for about 18-24 months. Dr. Dormuth unfortunate if BC was not an active member and willing told us that DSEN wanted the B.C. data to be included in participant in the work. the study so that the full impacts of the use of this drug in In an email to the ministry dated September 24, 2012, Canada could be understood. As we described in Chapter the project manager of the PharmacoEpidemiology Group 12, the ministry took no meaningful steps to inquire into 10 David Henry et al., “Occurrence of pregnancy and pregnancy outcomes during isotretinoin therapy” Canadian Medical Association Journal, 25 April 2016 . 359 360 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS whether it had a factual basis for Dr. Dormuth’s ongoing data suspension, and the initial decision was based on a mere allegation. Once the data suspension was lifted and Dr. Dormuth was able to proceed with the application to the Data Stewardship Committee, he received the data for the study. and policy decision making through the timely provision of data and information was harmed. When the Blue Thorn contract was suspended, at least 18 initiatives were negatively impacted or otherwise cancelled outright. This was in addition to numerous ad hoc projects and requests that could not be accommodated once the ministry lost the expertise provided by Blue Thorn associates. Dr. Dormuth and his colleagues completed the study and submitted it for publication on January 22, 2016; it was published in the Canadian Medical Association Journal 17.4.7.1  Federal Projects and Initiatives on April 25, 2016.11 Their study described serious public health risks that arose from poor pregnancy prevention As we described in Chapter 12, B.C. was able to meet for women treated with this drug. The paper concluded its basic project commitments to the National Population that “adherence to the isotretinoin pregnancy prevention Health Study of Neurological Conditions by temporarily program in Canada was poor during the 15-year period of bringing back two former Blue Thorn associates to prothis study.”12 Among other findings the study noted that duce necessary data reports, albeit after those reports pregnant women were prescribed this drug frequently, had been due. Producing the reports allowed the ministry which posed an elevated risk of harm to their unborn chil- to retain the funding it received for the project. The delay dren. It is our understanding that the delay in receiving in producing the reports attributed to the national project B.C. data resulted in a delay in completing the report and being pushed back by approximately four months. The project was designed to build upon the knowledge publicly releasing the results. The cooling of the ministry’s relationship to the DSEN aris- acquired through the Canadian Chronic Disease Surveiling from the 2012 investigation has impacted the ministry lance System to determine how other conditions could as well as the academic community. The ministry’s ability be tracked in similar ways. Doing so promised to improve to assume a national leadership role on drug safety and the understanding of rarer health conditions suffered by effectiveness, as well as its ability to identify gaps in sci- relatively small portions of the population. As explained to entific knowledge that it could address through its admin- us by the two individuals who returned to the ministry to istrative health data have been reduced by the problems produce the basic reports, in their opinions the real value of the project was not in the production of the reports, encountered since 2012. but in the collaboration and knowledge dissemination The ministry informed us that it recognizes the impact on between regions that improved the tools and algorithms this relationship and is currently working to find a solution by which researchers could better use administrative to improve B.C. data access for DSEN. health data sets. B.C. was unable to participate in those discussions and collaborative meetings after September 17.4.7  Public Health Epidemiology and 13, 2012, including a major conference. As such, whatever Analysis improvements were made to the analytical tools at the The suspension and effective termination of the Blue core of the project after September 13, 2012, were accomThorn contract temporarily but significantly undermined plished without the input of Blue Thorn staff representing the Ministry of Health’s ability to conduct its own popu- B.C., or the data validation they could provide. lation health surveillance to fulfill its role of monitoring, understanding and improving the health of British Colum- B.C.’s participation in other national studies was impacted bians. As such, the ministry’s ability to support program including: 11 David Henry et al., “Occurrence of pregnancy and pregnancy outcomes during isotretinoin therapy” Canadian Medical Association Journal, 12 July 2016, 188 (10):723-730 . 12 David Henry et al., “Occurrence of pregnancy and pregnancy outcomes during isotretinoin therapy” Canadian Medical Association Journal, 12 July 2016, 188 (10):723-730 . CHAPTER 17 B.C.’s role in the Canadian Chronic Disease Surveillance System, which estimates the incidence and prevalence of chronic conditions and related risk factors and use of health resources, was compromised as a result of its temporary inability to produce required project data. A project examining health care costs by Body Mass Index (BMI) category was cancelled. A project anticipated to identify intentional injury cases and utility of physician billing data in the Canadian Chronic Disease Surveillance System that was to be funded by the federal government was not approved. B.C. was likewise unable to participate in a National Unintentional Injury Pilot Project. 17.4.7.2  Provincial Projects and Initiatives A number of projects at the provincial level were impacted The Provincial Chronic Disease Surveillance program, designed to serve similar purposes as the national project described above, was delayed by seven months. This delay subsequently impacted other ministry information products such as First Nations annual chronic disease reports. Various reports by the Provincial Health Officer were delayed due to the ministry’s limited ability to provide technical and data-related support, including reports detailing the health impacts of problem gambling and a surveillance of mental health and substance abuse disorders. Other joint PHO/Ministry reports detailing Child/Maternal Health Risk Analysis conducted with the support of the Child Health Program, Health Surveillance for Seniors and Risk Factors and Health Care Costs did not proceed or were delayed. The Representative for Children and Youth’s Pathways Research Initiative, which was anticipated to provide chronic disease information about mothers and children among specific demographic groups, was not completed. Particularly relevant in the context of the current fentanyl crisis, an opiates addiction surveillance project, designed to supplement other addictions research by providing regularly updated and reported data to track opiate addiction among specific demographics and geographic regions, to a degree not possible through the use of PharmaNet data or physician reporting alone, did not proceed. The ministry did not do other similar work until the 2015/16 fiscal year. A program running parallel to the National Population Health Study of Neurological Conditions project, the ministry’s own Surveillance of Neurological Conditions project, experienced delays equivalent to those of the national project. 17.4.7.3 Conclusion These project delays and cancellations had a negative impact on the ministry’s ability to provide key provincial health information to public decision-makers. Assistant Deputy Minister Arlene Paton alerted the investigation team and senior officials in the ministry to the likely impacts of the continued suspension of the Blue Thorn contract. However, we found little other evidence to suggest that other senior decision-makers or the investigation team meaningfully identified the impacts of the data suspension on provincial epidemiological research and surveillance and actively sought early resolution. 361 362 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS Findings F 53 Many staff across the Ministry of Health were negatively affected by the investigation, the dismissals, and the aftermath. Common impacts included fear, anxiety, loss of productivity at work, risk-aversion and, for some, health problems. F 54 A number of projects in the fields of health research, evaluation, health education and public health were delayed or never completed due to suspension of data access. CHAPTER 18 18.0 / RECOMMENDATIONS 18.1 Introduction Section 23 of the Ombudsperson Act provides that, after an investigation, the Ombudsperson may make “any recommendation the Ombudsperson considers appropriate.” Without limiting this broad power, the Act lists the kinds of things the Ombudsperson can recommend: (a) a matter be referred to the appropriate authority for further consideration, (b) an act be remedied, (c) an omission or delay be rectified, (d) a decision or recommendation be cancelled or changed, (e) reasons be given, (f) a practice, procedure or course of conduct be altered, (g) an enactment or other rule of law be reconsidered, or (h) any other steps be taken. Section 23 does not apply to investigations conducted pursuant to a referral from the Legislative Assembly or one of its committees. However, as I explained in Chapter 2, this exclusion, set out in section 10(5) of the Act, was intended to reflect that an investigation resulting from a referral by the Legislative Assembly or one of its committees involves a different kind of reporting process than is involved in the usual complaint process machinery set out in sections 23 to 26. As the referral in this case made clear, the Select Standing Committee on Finance and Government Services (the Committee) fully expected me to make recommendations. Paragraph 7 of the Committee’s Special Directions Regarding Referral to Ombudsperson (the Special Directions) states explicitly that this should be done: “Without limiting the Ombudsperson’s reporting authority or purporting in any way to fetter the Ombudsperson’s independent mandate to make the findings and recommendations he considers appropriate in accordance with his usual review standards regarding any matter arising from this referral in his final report ...” 363 364 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS Maladministration in public administration may impact a In addition to the individual-specific recommendations, I specific individual, a group of individuals, or be systemic have made recommendations that speak directly to sysand potentially impact many individuals or even the public temic issues that came to light in this investigation. Some at large. Similarly, a recommendation can be individually of these recommendations are aimed at preventing the focused or be systemic in nature. A recommendation is events described in this report from recurring. As such, not a legal remedy, although an accepted recommendation those recommendations relate to: may sometimes result in an outcome that is similar to that standards for the conduct of public service investigawhich a person may have achieved had they pursued lititions, including gation or other adjudicative mechanisms to address their government-wide investigation standards complaint. Because a specific recommendation is not an investigations conducted by the Investigation order, its efficacy depends on my ability to provide an and Forensic Unit of the Office of the Comptroller informed, reasoned and responsible basis for making the General recommendation. Its efficacy also obviously depends on the good faith of government to be willing to accept the referral of matters under investigation to the recommendation as being reasonable. RCMP In this chapter, I describe the recommendations that I Standards of Conduct for public service employees believe are necessary to address the findings and con data access suspensions clusions I made as a result of the investigation referred to my office by the Committee. These recommendations public service employment suspension and dismissal decisions, including: fall under two broad categories: individual-specific and systemic. dismissal for just cause Many individuals have been impacted, and even harmed, suspensions without pay of excluded public by events described in this report. Those harms are not servants easily addressed. Some of the individuals affected have independent oversight of dismissal decisions already sought and received remedies through the courts public announcements about employee discipline and collective agreement processes. decisions and referral to police My individual-specific recommendations may fall short of what some of the individuals think is appropriate and the process for obtaining and responding to legal advice necessary to address their experience. Others may believe that court litigation or collective agreement grievance the BC Coroners Service policy on disclosure of outcomes should represent the last word and that it is personal records of deceased persons not appropriate for this report to recommend anything Others of the systemic recommendations are aimed at further. However, as required by the independent and remedying some of the broader impacts of the 2012 inimpartial role of Ombudsperson, I have sought to make vestigation. Those recommendations address: recommendations that I believe appropriately reflect the public interest disclosure legislation events described in this report and my findings. I am confident that my recommendations regarding indi- organizational reconciliation in the Ministry of Health viduals will also have a broader effect. I believe that if government implements each of these recommendations focused on the impacted individuals it will contribute to the broader organizational reconciliation process that needs to occur. evidence-informed research, evaluation and decision making CHAPTER 18 18.2  Recommendations Pertaining to Employees, Contractors and Researchers acknowledgement by government that its conduct has caused harm to identifiable individuals. In making this recommendation, I took into account the reality that each of the excluded employees and Dr. William Warburton brought litigation against government In this report I made findings about the suspension and and each has settled that litigation with some payments dismissal of the seven individuals whose employment was involved. I have recognized that all such settlements repterminated, including the one who was constructively dis- resent a compromise, and that each of these parties in missed. I found that the government did not have sufficient settling the litigation signed a release of any future claims. cause to dismiss any of the employees. The decisions to do With regard to bargaining unit staff, I also considered so were based on mistakes of fact and unreliable evidence that settlements were reached between the union and following a flawed and unfair investigation process, a fail- the government in respect of the grievances filed under ure to consider whether certain conduct was condoned, the collective agreement in relation to their terminations. an unnecessarily hurried decision-making process and These settlements do not, of course, preclude government misunderstandings about the stage of the investigation from making ex gratia payments based on the information and the advice provided about the terminations. The public that has come to light in this investigation. That is particumanner of their dismissal was disrespectful. The decision larly so where, as here, those who “settled” did so under to publicly reference the involvement of the RCMP in a a cloud of possible criminal investigation. In pursuing and manner linked to their dismissal was wrong. settling civil claims while under the threat of a purported Contractors and researchers had their contracts and data criminal investigation, these individuals and their families access suspended primarily because of their professional were in a particularly vulnerable position. connection to individuals named in the complaint. Based The amounts I am recommending below reflect my policy merely on suspicion, the Ministry of Health suspended assessment as to what degree of ex gratia payment would data access for most of the contractors, and decided to appropriately respond to the circumstances of the indisuspend, cancel and then not renew a number of contracts. vidual in a particular class1. My purpose is not to add The process used to reach the suspension and cancellato settlements already concluded or to put individuals in tion decisions was unfair. The ministry’s responses were the position they might have been if a court had ruled excessive and the delays in resolving the contracting and in their favour and made an award. Indeed, I recognize data matters only compounded the unfairness of the minthat some individuals will never fully recoup the financial istry’s decisions. losses they suffered as a result of the investigations and decisions made about them, and that some harms done 18.2.1  Ex Gratia Payments An ex gratia payment is a discretionary payment made “out cannot be quantified or fully resolved by an amount of of goodwill” and where no legal obligation exists. There money. Rather, what follows is recommended in the true are examples of governments across Canada and inter- spirit of an ex gratia payment: that it, viewed on its own nationally making such payments from a sense of moral terms and irrespective of any other payment made or not, obligation rather than because of any legal requirement. is a discretionary payment made out of a sense of moral obligation, in solemn recognition of significant harms that In light of my findings about government conduct in this have been brought to light and suffered by those affected. investigation – some of which that has only come to light as a result of this investigation – I am recommending ex gratia payments by government to individuals in the categories described below, as a concrete and meaningful 1 I note that, even in the realm of civil damages, courts recognize that in the assessment of certain types of damages, such as non-pecuniary damages, there is no purely objective yardstick: Andrews v. Grand & Toy (Alberta), [1978] 2 S.C.R. 229 at 261-62. 365 366 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS R1 R3 By June 30, 2017, government make an ex gratia payment in the amount of $75,000 to each of Dr. Malcolm Maclure, Dr. Rebecca Warburton, Ron Mattson, Robert Hart, Ramsay Hamdi, David Scott, and the estate of Roderick MacIsaac. By June 30, 2017, government make: This recommendation is based on my view government conducted itself in an unfair manner in dealing with these employees and that they suffered as a result. Government has a responsibility to treat its employees fairly. Government’s unfair conduct in relation to the investigative process, the suspensions and the public manner of the dismissals, including the press conference and the reference to the RCMP, were particularly significant in the case of these seven individuals. Also relevant for these individuals is the length of time government took to realize that its own actions were wrong, which prolonged the length of time that these individuals had a cloud of suspicion hanging over them. Finally, in a manner that is unusual for matters of employment discipline, all of this occurred in the public spotlight. R2 By June 30, 2017, government make an ex gratia payment in the amount of $50,000 to each of Mark Isaacs, Dr. Colin Dormuth and Dr. William Warburton. This recommendation is based on my view that government conducted itself in an unreasonable manner in dealing with these contractors and that its actions harmed them. All of these contractors were told that they were the subject of the Ministry of Health investigation, but none was provided with adequate notice of the allegations against them or with the particulars about their impugned conduct, and none was given a fair opportunity to respond to the ministry’s concerns. I also considered the length of time government took to address the issues that led to these contractors being identified as subjects of the investigation, as well as the impacts that this delay had on the contractors’ professional standing and reputation. a. an ex gratia payment in the amount of $15,000 to each of six public servants who were also subjects of the investigation; and, b. in the case of the three individuals in paragraph (a) who were disciplined, reverse the financial impact of that discipline and remove the disciplinary findings from their employment record. This recommendation is to recognize that government conducted itself in an unfair manner in dealing with these public servants and that its actions harmed them. In reaching the amount recommended, I considered that, as a result of government’s conduct, these public servants suffered various harms, including loss of career opportunities and unjustified employment discipline. The three individuals who were disciplined are not identified by name in this report, but their circumstances are generally described. The identities of these individuals will be provided to government along with this report. R4 That government: a. By September 30, 2017: i. Establish a compensation fund in an amount not less than $250,000 ii. Identify and contact individuals (other than individuals identified in the other ex gratia payment recommendations) who were employees, associates or research subcontractors of: 1. Resonate 2. Blue Thorn Research and Analysis Group 3. the Therapeutics Initiative CHAPTER 18 who were impacted by the data and contract suspensions and cancellations and invite them to make applications to the fund. b. By March 31, 2018 make ex gratia payments to the applicants from the fund on a fair and equitable basis, taking into account the impact the data and contract suspensions and cancellations had on them. very badly treated by the ministry even though his conduct was completely proper which was apparent at the time. 18.2.2  Reopening the Settlement of the Grievances Each of the excluded public servants who had been dismissed in 2012 sued government. That litigation settled on various dates from February 2014 to December 2015. As outlined in Chapter 11, and consistent with the collective agreement process, grievances were initiated by These payments are to recognize that government conthe BCGEU on behalf of the three bargaining unit staff ducted itself unreasonably and unfairly in how it dealt with who had been dismissed. The grievances did not proceed these contracts, and that individuals who worked on the through to arbitration. They were settled in June and Sepdeliverables under those contracts suffered as a result. tember, 2013. The individuals working on these contracts were fulfilling a role critical to the ministry, in some cases akin to that At the time the grievances were resolved, government of a government employee. Because of the investigation, was only just beginning to reappraise the dismissals and these individuals not only lost their direct income, but related government conduct. Furthermore this reappraisal they were deliberately prevented from accessing ministry was, in its initial stages, primarily occurring in the condata, which impacted their ability to obtain gainful future text of the excluded staff litigation which, on behalf of employment in their areas of expertise, some for a lengthy government, was handled separately from the bargaining period of time. Thus these payments are to be made to unit staff grievances. It was only over the ensuing months the individual associates impacted rather than to the cor- beginning in the latter half of 2013 that government began to view the dismissals in a different light. porate entity that employed them. I appreciate that complexities can arise in the develop- In my view, had the grievances of the three bargaining ment of such a compensation process. If in establishing unit staff taken longer to resolve, it is likely that the terms the overall terms of the compensation scheme the ministry of the resolutions of the grievances would have taken is unclear as to the purpose or intent, I am prepared to into account government’s broader reappraisal which informed its handling of the litigation involving the excluded provide my advice, if asked. employees. R5 Some might argue a settlement is a settlement, and that whatever the knowledge and circumstances that prevailed at the time, the parties must, in the interests of finality, By June 30, 2017, government make an additionlive with the outcome of the resolution of employment al ex gratia payment in the amount of $50,000 to disputes. Legally, that position is unassailable. However, each of Ron Mattson and Mark Isaacs. I am aware of nothing in the law preventing the parties to a collective agreement, in exceptional circumstances, This recommendation is based on my view that Ron Mattson and Mark Isaacs were treated in a manner that so from agreeing to set aside their settlement, enter into a departed from the standard expected of government that new agreement or ask an arbitrator to make a ruling based it was oppressive. Mr. Mattson was dismissed from em- on facts agreed to by the parties. ployment for cause even though it was apparent at the In my view, the circumstances here are exceptional. time there was not just cause. This was wrong. Mr. Isaacs, Since the 2013 settlements were entered into, there a long-time, highly regarded and trusted contractor, was has been a fundamental reappraisal of the underlying issues, both within government and in this report. In 367 368 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS these circumstances, an unbending reliance on finality would serve to prevent, rather than permit, the ability of government to put things right. I make this recommendation with two important qualifiers. First, I am well aware that this is not a matter on which government can act alone – both the union and the government must agree if the previous settlement is to be set aside in favour of another process. Second, I think it would be going too far to recommend a re-opening that would expose all parties – both the employees and the government - to the prospect of fully re-litigating all of the evidentiary issues that would inform “just cause” proceedings. That would just promote more positional and adversarial conduct, could result in more harm to individuals and would inevitably prolong what has already gone on for far too long. b. If new settlements cannot be reached (or the parties prefer this option as their primary option), make its best efforts to work with the BCGEU to develop a Statement of Agreed Facts concerning the circumstances of the dismissals, which Statement the parties can agree to place before a labour arbitrator pursuant to the collective agreement, in order to allow for a proper adjudication of damages. Whether the existing settlements would terminate upon tendering the Statement of Agreed Facts, or after the labour arbitrator’s decision, can be addressed by the parties as a matter of labour law. 18.2.3 Apologies I appreciate that the ex gratia payments I have recom- An apology is often an important step in allowing a party mended above may complicate any new resolution and that has been wronged to move forward and even to forthe parties will have to decide how such payments affect give. In our 2006 report, The Power of an Apology, we a new agreement. I would say that, as noted earlier, the wrote: ex gratia payments are based on different considerations, Empathy is expressed when a person expresses and they are the same for both the excluded employees regret for harm to another and acknowledges and the bargaining unit staff regardless of the settlements the other’s hurt. When a person apologizes for in each case. The current recommendation is based on harm done to another, it is implied that the permy view that the bargaining unit settlements themselves son acknowledges the wrongdoing and is takshould be revisited. ing responsibility for what happened. It is the combination of acknowledging the wrongdoing R6 and accepting responsibility that seems to give strength to an apology. 2 If by June 30, 2017 the BCGEU, following conWith the exception of the apology made in 2014 to the sultation with David Scott, Ramsay Hamdi, and family of Roderick MacIsaac, government has not apoloa representative of the estate of Roderick Magized for what happened. It is time that it do so. ApologizcIsaac, approaches government about revisiting ing will serve to clear the path to reconciliation, a matter any or all of the June and September 2013 grievthat is dealt with elsewhere in this report. ance settlements, that government: a. Enter into good faith negotiations with the BCGEU concerning the replacement of the existing settlements with new settlements, and 2 R7 By May 31, 2017, government make a public statement that acknowledges and apologizes for the harm caused by the Ministry of Health Office of the Ombudsperson, The Power of an Apology: Removing the Legal Barriers, Special Report No. 27 (Victoria, BC: February 2006), 4 . CHAPTER 18 investigation and the decisions that resulted, including the employee suspensions, employee discipline and terminations, contract suspensions and terminations, and unwarranted data suspensions. R8 By July 31, 2017, government issue a personal apology to each of Dr. Malcolm Maclure, Dr. Rebecca Warburton, Ron Mattson, Robert Hart, Ramsay Hamdi, David Scott, Dr. William Warburton, the family of Roderick MacIsaac, Mark Isaacs, Dr. Colin Dormuth, Contractors 1 and 2, and the six public servants referred to in recommendation R3. 18.2.4  Personal Property of the Terminated Employees The Ministry of Health did not ensure that the fired employees and one contractor had adequate opportunity to identify personal belongings before the investigation team packed up the contents of these individuals’ offices. R 11 By May 31, 2017, the Ministry of Health make arrangements for each of Dr. Malcolm Maclure, Dr. Rebecca Warburton, Ron Mattson, Robert Hart, Ramsay Hamdi, David Scott, Dr. William Warburton and a representative for the estate of Roderick MacIsaac to review the contents of the boxes of material packed up from their offices for the purpose of identifying, and having returned to them, any books, papers, articles or other personal belongings. The apologies referred to in the above recommendation should not be written as form letters. They should recognize each individual’s circumstances and the harm caused to him or her by the investigations and resulting 18.2.5  Investigation Conducted by the decisions. This should include government’s willingness Investigation and Forensic Unit of the Office to consult with the individual to whom it is apologizing in of the Comptroller General order to write a letter that is appropriate to that person’s I found that the investigation conducted by the Investigacircumstances. tion and Forensic Unit (IU) of the Office of the Comptroller General had procedural flaws and the IU’s final report contained a number of inaccuracies and unsupported findings R9 and inferences. By March 31, 2018, the Ministry of Health issue By naming a number of individuals in its final report, the a written apology to each of the individuals to IU implicated them in potential wrongdoing and invited whom an ex gratia payment is made from the negative inferences about their conduct. Many of these compensation fund established in recommensuggestions and negative inferences were unjustified and dation 4. not supported by the evidence. Fortunately, most of these individuals have not been publicly identified in connection with that report. When the report was leaked, however, R 10 government was required to inform all of these people that they had been named in the report. For many of them, By March 31, 2018, the Ministry of Health issue it was the first time they became aware they had been a written apology to each person not included subject to any investigation or otherwise implicated in the in the above recommendations, to whom it sent Ministry of Health investigation. a data demand letter in 2012 and 2013 as a conAs described in Chapter 14, the impacts arising from the sequence of the investigation. report were magnified when the report was disclosed to the media and then published, months after the terminated 369 370 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS employees had settled their litigation and after government had received advice from its legal counsel that the report contained statements that were untrue and were potentially defamatory. Despite its awareness that the report contained inaccuracies, government did not publicly defend the individuals named in the articles. R 14 By June 30, 2017, government make an additional ex gratia payment in the amount of: a. $25,000 to Dr. Malcolm Maclure b. $25,000 to Dr. Rebecca Warburton Key components of the settlement agreement reached between the government and both Dr. Maclure and Dr. R. Warburton focused on the reputational damage the I recommend this ex gratia payment knowing that it may government’s action had caused them and on mitigating remain open for both Dr. Maclure and Dr. R. Warburton and containing that damage. The subsequent publication to begin legal proceedings seeking damages alleging inof some of the content of the IU report and the failure of jury to reputation arising from the leak of the IU report. government to publicly defend Dr. Maclure and Dr. R. War- Whether such litigation is commenced, and what result burton undermined the settlements the parties reached it might have, is at this stage speculative. In my view, ex and threw the government’s earlier positive statements gratia payments are appropriate. about their conduct into question. While this is implicit in an ex gratia payment, I will add, for In my view, government needs to take steps to acknow- clarity, that in my view government ought not to require ledge and address the impacts on these individuals re- Dr. Maclure or Dr. R. Warburton to sign a release as a sulting from the public disclosure of the report. condition of obtaining this payment. Should either of them successfully bring an action concerning the impact on their reputation (an action that would have to be decided on its R 12 own terms), it will be for the court to determine whether By June 30, 2017, government issue a public it is appropriate to set off any amount paid to these instatement confirming that the ministry has withdividuals according to this recommendation against any drawn the final report of the Investigation and damages award the court makes. Forensic Unit, and acknowledge that the report 18.2.6  Honouring Roderick MacIsaac’s contains inaccuracies and will not be relied on. Memory R 13 By June 30, 2017, the Ministry of Finance send a letter of apology to each of the individuals named in the report of the Investigation and Forensic Unit, who it notified following the unauthorized disclosure of the report, confirming that the ministry has withdrawn the report and that the report will not affect the ability of those individuals to work for or with government in the future should they wish to do so. Before he was suspended and then ultimately fired from his co-op position, Mr. MacIsaac was a PhD student at the University of Victoria who hoped to have a career in the public service. I found that Mr. MacIsaac was treated unfairly in the investigation and that the decisions to suspend and then terminate his employment were wrong. Mr. MacIsaac was poorly served by the public service he hoped to one day join on a permanent basis. In my view, an appropriate way to honour the memory of Mr. MacIsaac is for the province to provide a financial endowment for a scholarship for doctoral studies at the University of Victoria. CHAPTER 18 R 15 a reasonable assessment of whether the facts gathered pointed to an actual or perceived conflict of interest; and if the facts did suggest that, whether the employee had By September 30, 2017, government provide disclosed the conflict such that the ministry was aware funding in the amount of $500,000 to endow a of and had condoned the circumstances giving rise to the scholarship for PhD candidates at the University conflicts. As a result, the investigators and decision-makof Victoria. ers incorrectly concluded that employees were in conflicts An endowment of this amount will generate an annual of interest or otherwise in breach of the Standards of scholarship consistent with other doctoral student awards. Conduct. Additionally, the investigators and decision-makI anticipate that the University of Victoria would consid- ers we spoke with had vastly different, and sometimes er public administration, health research, statistical or erroneous, views about what constitutes a conflict of inquantitative analysis as potential areas of focus for the terest and how, where one might exist, it can be properly scholarship, and would consult with Mr. MacIsaac’s family, managed. to the extent that they wish to be involved, in establishing What is clear is that the best approach to address pothe scholarship. tential conflicts of interest involves early identification, In working as a co-op student, Mr. MacIsaac was part of a reasoned and careful consideration about the nature, a long tradition in the B.C. public service of supporting scope and severity of the conflict, clear direction and comcooperative education by students – including at the plete and accessible documentation. By putting everyMinistry of Health. Students and the public service alike thing on the table, employees can ensure that they are benefit from the contributions that co-op students make not inadvertently contravening the Standards of Conduct and, where appropriate, government and employees can during their work terms. take steps to mitigate conflicts. Requiring employees to disclose conflicts of interest promotes public confidence R 16 that government employees are solely acting in the public interest. By September 30, 2017, the Ministry of Health establish an annual staff award for excellence in training, mentoring and supporting co-op students. 18.3  Systemic Recommendations 18.3.1  Standards of Conduct for Public Service Employees Government requires its employees to comply with its Standards of Conduct as a condition of employment. 3 Those standards include the disclosure of any potential conflicts of interest. As discussed in detail in Chapter 3, the existing Standards of Conduct require employees to disclose potential conflicts of interest, but do not provide sufficient guidance as to the steps government should take once a potential conflict is disclosed. The information we received from the Public Service Agency (PSA) made clear that it is up to employees and their supervisor to resolve the matter on a case-by-case basis. While it is correct that conflict of interest must be dealt with on an individualized basis, the underlying process to arrive at those individualized decisions ought not to be vague or ad hoc. The current lack of process for considering and addressing questions of conflict of interest is not helpful. With regard to assessing conflicts of interest, I find the Assessment of conflict of interest can, depending on the following approach instructive: circumstances, be complex. Neither the Ministry of Health A conflict of interest is not an actual occurrence investigation team nor the Office of the Comptroller Genof bias or a corrupt decision but, rather, a set eral’s Investigation and Forensic Unit (IU) team carried out 3 British Columbia, “Conflicts of Interest,” Standards of Conduct for Public Service Employees. 371 372 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS of circumstances that past experience and other evidence have shown poses a risk that primary interests may be compromised by secondary interests. The existence of a conflict of interest does not imply that any individual is improperly motivated. To avoid these and similar mistakes and to provide guidance for formulating and applying such policies, a framework for analyzing conflicts of interest is desirable.4 In my view, analyzing conflicts of interest within an appropriate framework promotes analytically sound and more consistent decision making. It also increases the likelihood that decision-makers can document and communicate their reasons clearly and effectively. R 17 By March 31, 2018, the Public Service Agency develop and implement a policy framework for assessing situations to determine whether a real or perceived conflict of interest exists. The framework should: a. Require employees to disclose circumstances that may give rise to a real or perceived conflict of interest, including any outside remunerative work. b. Specifically require issues of conflict of interest to be addressed at the outset of employment and on an ongoing basis where the employee’s job function or less than fulltime employment necessarily contemplates external remunerative work or external affiliation. i. Identify the specific personal interests of the employee that are relevant to the circumstances. ii. Analyze whether those interests conflict, or could be perceived to conflict, in a way that impairs the employee’s ability to act in the public interest, undermines the public’s confidence in the employee’s ability to discharge work responsibilities, or undermines the public’s trust in the public service. iii. Decide whether the circumstances give rise to a perceived or actual conflict of interest, and, if they do, consider whether there are steps that government or the employee must take to address or mitigate the conflict such that it does not pose an unacceptable risk to government or the public interest. iv. Document, on the employee’s personnel file, and elsewhere as is required in the circumstances, the reasons for the conclusion reached and the directions, if any, to be followed. A copy of the reasons should be provided to the employee. v. To the extent reasonable and necessary, be transparent within the organization about how the conflict of interest has been addressed so that misunderstandings are minimized. c. Where a disclosure is made by an employee under paragraph (a), the employer shall identify the specific work duties of the employee and the underlying government interests that are relevant to the circumstances. 4 National Center for Biotechnology Information, Conflict of Interest in Medical Research, Education, and Practice . Accessed 27 February 2017. CHAPTER 18 R 18 By March 31, 2018, every ministry and government agency whose employees are subject to the public service Standards of Conduct assign a senior and fully trained staff member the task of assessing and providing advice to the employee and their supervisor about disclosed prospective conflicts of interest in their organization. the Chief Information Officer nor the ministry articulated principles of administrative fairness for the investigation team to follow. 18.3.2.1  Standards for Human Resource Investigations In response to the findings made by Marcia McNeil in her December 2014 review report, the PSA has implemented new policies governing the conduct of investigations. The PSA has created an Investigation Best-Practice Protocols Checklist which emphasises key administrative fairness and natural justice principles. The checklist asks the following: In making these two recommendations, I am mindful that the March 2013 Report of the Review of the Members’ Was the investigation conducted in an impartial manner by someone who is neutral? Conflict of Interest Act (conducted by the province’s Select Standing Committee on Parliamentary Reform, Ethical Was the investigation conducted objectively without Conduct, Standing Orders and Private Bills) made two having a pre-determined hypothesis or outcome in recommendations concerning senior public servants’ commind? pliance with the Standards of Conduct. Those two rec- Were respondents provided with the opportunity ommendations have not been implemented. I believe that to have representation, e.g. a union shop steward, the two recommendations I have made do not preclude or an analogous representative for management implementation of the 2013 recommendations. respondents, during interviews? As well, I am mindful of the March 2017 report of the Aud- Were the parties and witnesses properly informed itor General, An Audit of BC Public Service Ethics Manageof their rights and responsibilities during the invesment, in which the Auditor General makes recommendatigation process, including expectations surrounding tions about the Standard of Conduct and ethics. I am of confidentiality and retaliation? the view that the two recommendations I make work well with those of the Auditor General, and that implementa- Was the respondent given sufficient details about the nature of the allegations prior to being asked to tion of one office’s recommendations does not preclude respond? implementation of the other office’s recommendations. Did the interviews include a sufficient level of 18.3.2  Standards for the Conduct of Public open-ended questions to encourage full disclosure? Service Investigations Was the respondent given a full opportunity to I found that the investigations by the Ministry of Health respond to all allegations that could form the basis and IU teams were conducted unfairly and ineffectiveof disciplinary action? ly and resulted in decisions being made on the basis of unreliable, incorrect and incomplete conclusions. Neither Did the investigator examine and assess all the relevant evidence that was uncovered or disteam used or applied acceptable investigative standards, closed during the investigation, including potential including principles of administrative fairness. alibis, alternate explanations, and/or mitigating The Ministry of Health investigation team had no unifying circumstances? standard or policy to guide them through a multi-faceted investigation. The PSA did not yet have in place its Were all relevant witnesses (as identified by the parties, other witnesses or the investigator) policy to guide the human resources component of the interviewed? investigation, and even many of the practices that had been developed were not followed. Neither the Office of 373 374 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS Based on all the evidence, has the investigator determined that all or some of the allegations made against the respondent have been proven on a balance of probabilities (51% or greater)? PSA policy requires that this checklist be completed and submitted prior to the dismissal for cause of a public service employee. In addition to the checklist, the PSA has developed and implemented new training materials that were not in place prior to this investigation. These materials address many of the same administrative fairness and natural justice principles in the checklist. Together, the checklist and the training materials have gone a considerable way to addressing the systemic issues around the conduct of PSA investigations that we identified in this report. R 20 By March 31, 2018 the Public Service Agency undertake, and publish the results of, an independent compliance review of its investigatory policies established in response to the McNeil Review. 18.3.2.2  Investigations Conducted by the OCG Investigation and Forensic Unit Ensuring that the Investigation and Forensics Unit of the Office of the Comptroller General is able to carry out fair, effective and accurate investigations is vital. Public confidence in government’s financial probity and integrity relies on a number of institutions including the Office of the Comptroller General. For this reason the IU’s limitations identified in this report need to be addressed. The changes made by the PSA since the McNeil report As described in Chapter 14, the IU has undergone a review have, understandably, focused primarily on the details by KPMG since its report into the Pharmaceutical Services of human resource investigations. We also saw in this Division was completed. KPMG highlighted some of the investigation that there was confusion or difference of same deficiencies as we identified in this report and made opinion about who was responsible for ensuring human recommendations to address those issues. Since KPMG resource investigatory processes were observed. Clariissued its report, the IU has begun to implement those fying executive accountability between the PSA and the recommendations. Those KPMG findings and recommenministry that employs the individual who is the subject dations are broadly consistent with what we observed. of the investigation would be beneficial going forward. One of the positive steps the IU has taken since KPMG finalized its report is to begin to develop a policies and R 19 procedures manual. A solid investigative manual will result in more reliable investigative outcomes. More work needs By March 31, 2018, the Public Service Agency to be done on the draft manual to integrate administrative revise its existing Accountability Framework for fairness, but it is a good start. Administrative fairness Human Resource Management to ensure a clear needs to be understood as integral to all aspects of the allocation of responsibility among senior execIU’s work. The language of fairness needs to be integrated utives of PSA and of line ministries responsible meaningfully with the IU’s understanding of how the IU for ensuring that any internal human resource assesses and determines the reliability of evidence. investigations occurring under their leadership: a. are conducted in accordance with the principles of administrative fairness, b. have a clearly articulated scope and focus, both of which are reassessed on a regular basis, and c. have appropriate lines of reporting. CHAPTER 18 R 21 By September 30, 2017, to ensure that the principles of administrative fairness are appropriately exercised by the Investigation and Forensic Unit (IU): a. The IU implement a program of ongoing professional development on administrative and procedural fairness for its investigators and any employees leading an investigation. b. The IU revise its draft policies and procedures manual to adequately integrate the principles of administrative fairness into its investigative approach. c. The Comptroller General review each investigative plan developed by the IU to ensure that the plan’s scope is appropriate, and within jurisdiction, and the office can adequately resource the investigation as set out in the plan. d. The Comptroller General reassess the investigative plan on a regular basis, in consultation with the IU, and authorize adjustments to investigative scope or resources as necessary. R 22 By September 30, 2017 the Ministry of Finance provide a report to the Auditor General on the progress of implementing each recommendation of the KPMG report. Such reporting is to continue quarterly or on such other schedule and for as long as specified by the Auditor General. 18.3.2.3  Referring Matters Under Investigation to the Police The Ministry of Health and the IU first contacted the RCMP in August 2012. At the first meeting, the RCMP made it clear that it would decide whether or not to conduct an investigation only after receiving a final report from the ministry’s investigation team. The RCMP did not commit to conducting an investigation nor did it ask the ministry to take any specific steps on its behalf. Reporting a matter of employee misconduct to police for the purpose of criminal investigation is a serious matter. Of course there are circumstances where it is necessary and in the public interest to do so. However, in my view the decision-making structure for doing so is inadequate. There are various ways in which this can be addressed including refining the criteria to be applied to such decisions as well as creating an approval process that requires the reasons be documented for a senior decision maker. The balance for government to strike is to avoid creating too high a threshold for reporting a matter to the police (that would discourage appropriate cases being reported) while building in safeguards to avoid unnecessary, excessive and potentially damaging reporting. At the risk of stating the obvious, the above comments are directed to reporting non-urgent matters. Matters of public safety or emergency raise different issues. As detailed in this report, despite being advised by the RCMP that no decision about whether the RCMP would commence an investigation until a final report was received from the ministry, the RCMP were repeatedly provided with significant amounts of personal information about employees. The IU also maintained regular contact with the RCMP during its investigation. Given the significant consequences that can flow from a decision to refer a matter to the police, public service investigators should have clear guidelines to assist them in determining: when it is appropriate to refer a matter to the police what information can and should be provided to police absent a legal obligation the pre-conditions that must be established prior to sharing information with the police Government has recent experience addressing similar concerns. For example, after two sawmill tragedies, steps were taken by government to improve the investigation processes used by WorkSafeBC in cases that may lead to criminal proceedings. It is my belief that such an approach would be helpful in establishing ways for ministries to 375 376 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS work more appropriately with police. This type of policy an opportunity to respond to the allegations against guidance is important not only to prevent the unnecessary them; handing over of sensitive information to the police, but The investigation was not conducted in a timely way also to ensure that authorities are provided with evidence and, as a result, the suspensions went on for much that would be admissible at a potential future criminal trial, longer than was reasonable or necessary; and in cases where charges are laid. The Ministry of Health did not adequately consider the impacts of many of the data access suspensions R 23 on health research and whether and how those impacts could be mitigated or addressed. By March 31, 2018, the Ministry of Justice develop: a. for approval by the Head of the Public Service, a new procedure regarding reporting employee misconduct in non-emergency situations to the police, b. and implement training for public service investigators who, as part of their duties, report potential crimes to the police. This training should focus on: i. the factors to consider in determining whether to report a potential crime to the police, and ii. what information is appropriately shared with the police, particularly in the absence of a legal requirement to do so. 18.3.3  Data Access Suspensions The problems with the process that the Ministry of Health followed in making determinations to suspend a number of individuals’ access to data are identified earlier in this report. We identified the following flaws in the process that the Ministry of Health followed in relation to the data access suspensions: There was insufficient evidentiary basis for the decisions; In a number of cases, the Ministry of Health failed to notify individuals that their data access had been suspended, did not provide reasons for the suspension, and did not provide the individuals with R 24 By December 31, 2017, following consultation with the Information and Privacy Commissioner, the Ministry of Health create new guidelines for making decisions about suspending access to administrative health data. The guidelines should address the flaws in ministry practice that we identified in this report including better defining the threshold for data suspensions in cases where there is only an unconfirmed suspicion of a data breach. 18.3.4  Public Service Employment Suspension and Dismissal Decisions 18.3.4.1  Dismissal for Just Cause In response to Marcia McNeil’s report, the PSA made a number of changes to its policies and practices regarding investigations and employee discipline. For example, the PSA has established practices requiring that ministries seek PSA advice prior to terminating employees, and requiring the Deputy Minister of the PSA to confirm that “due process” has been followed prior to the termination of employees for just cause. The PSA representative must also indicate whether legal or labour relations advice has been sought before a Deputy Minister terminates an employee for cause. These are commendable changes. Nevertheless, we also heard evidence that the PSA does not always follow these policies. Obtaining legal or labour relations advice prior to terminating employees for just cause is an important step toward ensuring that government conducts itself in accordance with its contractual obligations to its employees CHAPTER 18 and that government does not assume undue exposure to wrongful dismissal claims. R 25 By June 30, 2017, the Public Service Agency (PSA) and the Head of the Public Service develop and implement a policy that requires the following steps to take place before a Deputy Minister dismisses an employee for just cause under section 22(2) of the Public Service Act: a. In relation to excluded employees, the PSA obtain a written legal opinion about whether there are sufficient grounds to support the termination. The PSA should provide its lawyer with sufficient background and file material for the lawyer to assess the evidentiary strength of the government’s just cause position. b. In relation to included employees, the PSA obtain written senior labour relations advice about the strength of government’s just cause position from one of its senior labour relations advisors. The PSA should provide its advisor sufficient background and file material for the advisor to assess the evidentiary strength of the government’s just cause position. c. The Deputy Minister with authority to dismiss be required to review and consider the PSA’s advice, and the legal advice, prior to making a decision about whether to terminate an employee for cause. Such consideration should be confirmed in writing. The Public Service Act provides that an employee may be suspended “for just cause from the performance of his or her duties.” The Act does not expressly address suspensions without pay, nor does it address suspensions in the absence of just cause, such as suspensions “pending investigation” which were imposed in this case. As described in this report, suspensions without pay pending investigation are problematic because they may place undue pressure on the investigator and the decision-maker to act quickly. Suspensions without pay may also increase the prospect of an employer becoming wedded to the allegations against an employee because the employer has already taken the significant steps of denying the employee the ability to carry out his or her employment duties and of ceasing to pay his or her salary. Moreover, excluded employees have no mechanism – other than litigation – to challenge a decision to suspend their employment without pay. The PSA has indicated that it has changed policy to generally suspend employees with pay rather than without pay. They indicate there may be circumstances where suspension without pay is justifiable. There is no current express legal foundation for this approach. Depending on the exception the PSA wishes to maintain, regulations under the Public Service Act or an amendment to that Act may be required and appropriate safeguards included. I note that this has not been done to date. R 26 Effective immediately, government cease its practice of suspending excluded employees without pay pending an investigation in the absence of authority in the Public Service Act to do so. 18.3.4.3  Oversight of Dismissal Decisions 18.3.4.2  Suspensions Without Pay of Excluded Public Servants As described in this report, a number of issues arose in the The law provides that it is not open to an employer to conduct of the 2012 investigation that led to the employsuspend an employee without pay in the absence of statu- ee dismissals. I believe the public service would benefit tory or contractual authority to do so. No such authority from a process of regular oversight of dismissal practices, aimed at identifying systemic issues and recommending existed here. improvements. This oversight process would not act as a barrier requiring termination decisions be approved 377 378 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS through the process in advance, nor as an appeal mechan- This newly proposed role for the Merit Commissioner ism for a terminated employee after a termination decision would expand the scope of the position’s current jurishas been implemented. Instead, it would serve as an after- diction and would impact the workload of that office and the-fact compliance assessment of whether government the staff. As a result, government would need to ensure has complied with its legal (and, as applicable, collective that adequate resources are provided to the Merit Comagreement) requirements and policy requirements. missioner to enable the office to act in this new role. As I believe this oversight function is best provided by some- well, government would need to consult with the Merit one who is independent from the public service and can Commissioner on the details of the required legislative provide impartial and objective recommendations for changes, including whether the review should be of all systemic improvement. In my view, this expanded over- dismissals or just those selected by the Commissioner. sight role should be conducted by the Merit Commissioner, who is an independent Officer of the Legislature and is already empowered under the Public Service Act to conduct reviews and audits to ensure that the merit principle is upheld in public service hiring decisions. The Merit Commissioner’s existing expertise in overseeing the PSA’s compliance with its legal and policy requirements makes it the best fit among the independent officers to oversee similar compliance when employment is ended. In this context, oversight by the Merit Commissioner would not grant additional remedies to individuals whose employment has been terminated. The role would not be to determine whether a just cause existed for the termination. Both bargaining-unit employees and excluded employees would continue to benefit from the remedies provided in the applicable collective agreements (for unionized staff) or through the express and implied terms of the applicable employment agreement (for non-unionized staff). R 27 By March 31, 2018, government introduce legislation for consideration by the Legislative Assembly to amend the Public Service Act to provide the Merit Commissioner with the authority to: a. Conduct reviews of all public service dismissals for just cause, to ensure adherence to public service standards and legal requirements. Such reviews are to take place following the completion of all labour relations or litigation proceedings related to the termination. b. Publicly report the results of these reviews, along with whatever recommendations the Merit Commissioner considers appropriate in the circumstances. As such, the findings of any review conducted by the Merit Commissioner would be inadmissible in any proceedings brought under the collective agreement or in a wrongful 18.3.4.4  Announcements About Employee Discipline dismissal action. Moreover, neither the Merit Commis- By announcing publicly that it had dismissed individuals sioner nor their staff should be subject to being compelled and had reported this matter to the police, government to be witnesses in any proceeding in connection with wanted to show that it took the matters under investithis expanded oversight role. The Merit Commissioner’s gation seriously. I concluded that government, in taking reviews should occur after any individual remedies have this approach while the investigation was still ongoing, been completed or the time for seeking such remedies did not give enough consideration to the impact the anhas expired. In this way, the role of the Merit Commission- nouncement would have on the ongoing investigation and er would be to provide independent assurance that the on individuals or the potential for such an announcement process followed complied with all requirements arising to create unnecessary public alarm. from law or government policy without disrupting the ex- Following the McNeil review, the Public Service Agency isting legal or collective agreement process that apply to and Government Communications and Public Engagement a specific case. developed guidelines for government communications CHAPTER 18 regarding personnel matters. These guidelines address how to manage both public and internal communications about human resource matters consistently with government’s legal obligations to protect individual privacy, while also supporting confidence in public administration. According to the guidelines, government should not disclose – during or after an employee investigation – the name of the individual being investigated and any disciplinary consequences that result unless there is a compelling reason for doing so. This is important guidance for public servants considering recommending a public announcement in human resource situations. Making such guidelines public would increase employee awareness about how and when government will communicate internally and publicly about personnel and employee discipline matters, and would promote public accountability and transparency. R 29 By June 30, 2017, the Public Service Agency and Government Communications and Public Engagement develop and make public a policy on announcing police referrals related to the conduct of a public servant. The policy should clearly state that unless there is an immediate risk to public health, safety or other similar exceptional circumstances, government should not publicly announce that it has referred the conduct of a public servant to the police prior to Crown Counsel approving charges. 18.3.5  Ensuring Effective Executive Transitions The senior executive of the provincial public service is The absence of a written policy regarding public disclo- composed of Assistant Deputy Ministers, Associate sures of police involvement in employment matters meant Deputy Ministers and Deputy Ministers, and is an everthat the issue was dealt with in a “one off” manner. Ques- changing complement of dedicated and hard-working tions of whether to disclose initial contact with police, public servants. Individuals move within the executive particularly at an early stage, ought to be dealt with in a and new individuals join as others leave the public service. structured, principled, and rigorous manner that considers the various competing interests. Such a policy would also These transitions are, by and large, well supported by the allow government to take into account the communica- professional public service. Incoming leaders meet with tions policies in use at law enforcement agencies so that outgoing ones, briefing binders are prepared, meetings where a police service would refuse to confirm or deny a with key stakeholders are arranged, and a professionmatter is under investigation, that policy is not rendered al and orderly transition occurs. All of this is important meaningless by government’s disclosure. This is particular- so that corporate memory is maintained. New leaders ly the case where, such as occurred in this case, the police may change programs, establish new priorities or change had expressly indicated they would not even determine organizational structure or personnel. However, an efwhether to initiate an investigation until government’s fective transition ensures that as new executives make these changes, they do so with a full appreciation of the internal investigation was complete. policy-related, organizational and strategic factors arising Government communications policy should directly ad- from the ministry’s history. dress the question of whether, and if so when, referral to the police ought to be included in a public announcement. While these transitions are typically well managed, I learned in this investigation that, for at least one of the transitions, difficulties were encountered with the availability R 28 of records and contact with a predecessor executive. Concerns were raised with us about whether it would have By June 30, 2017, the Public Service Agency been legally appropriate to contact executives no longer and Government Communications and Public in the public service due to privacy concerns. Engagement make public their policies regardIn identifying this issue, I want to avoid suggesting an ing internal and external communications about overly complicated or bureaucratic remedy. Transitions personnel matters. 379 380 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS usually work well. In the interests of effective public ad- Minister of Health’s understanding that legal advice had ministration, it is critical that a transition occurs effect- been provided on whether just cause existed with respect ively every time. to the employees whose employment he terminated. I note that my earlier recommendations regarding pre-conditions to an employment termination will eliminate the potential R 30 for such confusion in future dismissals. However, the issue could still arise in other legal advice contexts. By September 30, 2017, the Public Service Agency provide a report to the Head of the Public Service on ensuring excellence in executive R 31 transitions so that senior executives new to their portfolio are appropriately and effectiveBy March 31, 2018, the Head of the Public Serly supported to immediately carry out their new vice establish written protocols that address: responsibilities. a. Who has the authority to decide that government will not follow risk-based legal advice; 18.3.6  Obtaining and Responding to Legal Advice b. The process to be used when ministries decide to act contrary to legal advice, including how decisions in such situations are to be escalated, disputes resolved and outcomes documented; and In our report we noted occasions when legal advice provided to government was not followed. There are whole treatises on the role of the Attorney General and it is not my intention to reproduce them here. The broad role of c. The process to be followed when limited the Attorney General is to ensure that the administration legal advice is obtained, including who of public affairs by the provincial government is conducted 5 needs to be advised that the scope of the in accordance with the law. Thus, when government readvice is limited. ceives legal advice that a proposed course of conduct is clearly unlawful, government is, bound by the rule of law, obliged to heed that advice and not engage in the unlaw18.3.7  Public Interest Disclosure Legislation ful conduct unless government has a legitimate basis for questioning the Attorney General’s opinion. When gov- It is important for government to consider the question of ernment receives legal advice that a proposed course how to build a public service that is more robust and has of conduct is not clearly unlawful but does have legal the institutional knowledge, capacity and processes to risks, government is entitled to act in spite of the legal mitigate and address the risk of the events in this matter risks if it chooses to do so. However, that choice should occurring again. not be made lightly, as the actions in question may have One way that government can strengthen public confiunintended consequences, including undermining public dence in the administration of public affairs is by estabconfidence in government. Such decisions should be made lishing a clear and comprehensive scheme for handling by someone in a client ministry who is sufficiently senior so-called “whistleblower” complaints. British Columbia and well positioned to consider the impact on prudent is one of only two provinces in Canada that do not have public administration of acting in a particular way despite comprehensive whistleblower legislation (also known as the risks identified in legal advice. public interest disclosure legislation). The lack of public interest disclosure legislation in B.C. has been raised on We also noted a number of instances where there was confusion about the scope of the legal advice that had numerous occasions, but government has maintained that been provided. One notable instance was the then-Deputy 5 Attorney General Act, R.S.B.C. 1996, c. 22, s. 2(b). CHAPTER 18 existing mechanisms offer sufficient options for whistle- Transparency: Independent oversight of a public blowers to report alleged wrongdoing. interest disclosure scheme, and the public reporting of that scheme’s operation, can increase public While it is true that the Public Service Agency has estabconfidence in public sector institutions. lished pathways in the Standards of Conduct for public employees to bring forward allegations of wrongdoing, the current system lacks an appropriate framework for the assessment of those complaints. A properly enacted public interest disclosure scheme can not only protect those who raise alarms about wrongdoing from reprisal, but also protect public servants who may be unjustly the subject of such allegations. Public interest disclosure legislation and an associated scheme must balance competing interests, such as the duty of loyalty that employees owe their employer versus individuals’ freedom of speech. Importantly, in light of our investigation, this legislation and scheme must encourage individuals to come forward with disclosures while also providing government and its employees with sufficient protection against inaccurate, false or misleading disclosures. The way in which the initial complaint was dealt with in this case illustrates serious problems with the existing scheme, and supports the conclusion that British Columbia British Columbia’s current approach is a patchwork of would be best served by having a comprehensive legis- legislation and policy that addresses some specific issues lative framework for receiving and responding to public but falls short of a comprehensive framework for addressinterest disclosure complaints. In this case, the failure to ing whistleblower complaints. As a result, the patchwork adequately assess and respond to the original allegations approach does not foster the principles that should inform allowed the scope of the concerns and the number of whistleblower legislation and fails to achieve an appropeople implicated to expand in the absence of an appro- priate balance of the interests at stake. priate evidence-based foundation. The Freedom of Information and Protection of Privacy Act Public interest disclosure legislation at once protects protects employees who, acting in good faith and on the whistleblowers who come forward in good faith, and basis of reasonable belief, report contraventions or insupports the principles of public service accountability, tended contraventions of that legislation.6 The Financial integrity and transparency. Administration Act imposes a duty on employees to report financial wrongdoing, but provides no protections for those Accountability: Public interest disclosure legislation who do report.7 is consistent with an open government in which knowledge of government conduct promotes political and legal accountability. Providing protection for those who come forward in good faith with allegations of wrongdoing increases the likelihood that government will be held to account for its actions. Integrity: Public interest disclosure legislation can enhance the integrity of government and the public service by more clearly establishing a sense of responsibility to: first, identify and report alleged wrongdoing; and second, take appropriate steps to address those allegations within a reasonable timeframe. The Standards of Conduct also address some matters related to public servants who disclose wrongdoing. The standards impose a duty on all public servants to report any situation relevant to the public service that they believe “contravenes the law, misuses public funds or assets, or represents a danger to public health and safety or a significant danger to the environment.”8 As well, the standards state that employees will not be subject to reprisal for bringing forward allegations of wrongdoing in good faith. Union members must make an allegation report in accordance with their collective agreements. For example, members of the BC Government and Service Employees 6 Freedom of Information and Protection of Privacy Act, s. 30.3. 7 Financial Administration Act, s. 33.2. 8 British Columbia, Standards of Conduct for Public Service Employees, 6. 381 382 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS Union (BCGEU) must make a report first to their immediate supervisor, next to an excluded manager, and third to their Deputy Minister.9 Non-unionized employees must report in writing to their Deputy Minister or member of the executive or, where the matter involves their Deputy Minister, to the Deputy Minister to the Premier. The individual who receives the complaint must acknowledge receipt and review and respond to the matter, all within 30 days.10 Limitations with the current approach were highlighted in the Auditor General’s 2017 report on public sector ethics management.12 That report recommended a method of reporting unethical conduct where the process and protections are transparent and easy to understand. I agree with this approach and my recommendation below is consistent with that made by the Auditor General. The legislative regimes in Alberta and Saskatchewan both Any employee who believes that his or her concerns about reflect international best practices regarding public interwrongdoing have not been “reasonably resolved” by the est disclosure legislation. According to best practices, the ministry may refer the matter to an outside authority, in- legislation should: cluding the police, Auditor Genera or a health authority strike an appropriate balance between encouraging depending on the nature of the alleged wrongdoing.11 individuals to come forward with disclosures and Government has considered the necessity of a legislated public interest disclosure scheme on several occasions over the last decade, and in each instance has concluded that public servants are already adequately “protected by the terms of their employment” through the legislation and policies described above. The above provisions demonstrate that government is of the view that promoting disclosure of possible wrongdoing is in the public interest. However, in my view there is a dearth of law and policy in British Columbia that addresses how a public interest disclosure complaint will be handled once it is received. The current approach under the Standards of Conduct provides no direction about how the Deputy Minister or the person receiving the complaint will assess, respond to and investigate the matter. There is no framework for assessing whether a complaint requires investigation or for addressing complaints that lack merit or are made frivolously or in bad faith. There is no requirement that an investigation into such a complaint be in accordance with principles of administrative fairness. There are no laws or policies that address how government will report on the results of its assessments of public interest disclosure complaints. There is no oversight of the process. 9 providing sufficient safeguards against inaccurate or misleading disclosures establish an external body responsible for receiving, assessing, investigating and reporting on public interest disclosures require government to establish internal procedures for addressing public interest disclosures require government to establish internal policies, procedures and standards of assessment for addressing public interest disclosures require government to make public the procedures and standards of assessment it has developed, in order to foster confidence that public interest disclosures will be addressed appropriately. Independent oversight of a public interest disclosure scheme is a feature in all provincial statutes and at the federal level. The Government of Canada’s model for the federal public service incorporates an independent oversight authority dedicated exclusively to the receipt, investigation and review of alleged wrongdoing in the public service. With its unique mandate, the Office of the Public Service Integrity Commissioner has the capacity to extend its attention to preventative initiatives such as education 17th Master Agreement between the Government of the Province of British Columbia and the B.C. Government and Service Employees’ Union, 1 April 2014, s. 32.13. 10 Standards of Conduct, 6. 11 Standards of Conduct, 7. 12 Auditor General of British Columbia, An Audit of BC Public Service Ethics Management, March 2017. CHAPTER 18 and proactive reporting. Ideally, British Columbia should consider instituting a comparable independent agency. Another option is to add the role of independent oversight to the function of an existing legislative officer. Reasonable arguments could be made for assigning this new role to the Auditor General, the Information and Privacy Commissioner, or the Ombudsperson. The important principle to be established for a credible public interest disclosure regime is putting in place independent oversight. If this oversight function is assigned to an existing legislative officer, consultation with that officer would be important during policy and legislative development. R32 By March 31, 2018, government introduce, for consideration by the Legislative Assembly, public interest disclosure legislation that provides for the reporting, assessment, fair investigation, resolution and independent oversight of allegations about wrongful conduct within the government of British Columbia. data was safe from the investigation’s reach, staff minimized their work with data and interpreted relevant policies and legislation as conservatively as possible to limit their chances of being implicated in some perceived wrongdoing. Simplifying and clarifying policies and procedures to guide all ministry employees who work with administrative health data is a necessary step in reversing the negative impact arising from the 2012 investigation. The ministry has already begun this process and, through a newly emerging B.C. data platform initiative, has committed to improving the tools and policies by which administrative health data is used in the future. This step alone, however, will not address the underlying anxiety, distrust and loss of respect that lingers in the ministry today. We heard that the inadequate explanation for what happened in the past four years caused this risk aversion to spread to other parts of the ministry. The lack of any meaningful explanation for what happened after the investigation, combined with the public knowledge that the investigation focused on the disclosure and use of ministry data, caused the anxiety and fear felt by many in this group to transform into professional ambivalence. During our investigation, we heard that individuals otherwise 18.3.8  Organizational Reconciliation at the motivated by a desire to improve public health became Ministry of Health reluctant to carry out their work in ways not expressly perChapter 17 described how the Ministry of Health inves- mitted by policy or as explicitly directed by management. tigation created fear and anxiety across the ministry – a situation that has not yet been fully addressed. We The current Deputy Minister of Health, Stephen Brown, heard from many individuals how this has hurt morale, has demonstrated an awareness of the need to address employee engagement and productivity. Re-establishing the ongoing organizational challenges caused by the investhe confidence, trust and respect of ministry staff and its tigation. To the extent possible within the context of litigacontractors should be a key part of the ministry’s strategy tion, he took unusual and commendable steps to engage in personal reconciliation with some of the fired employees. moving forward. Were it not for his actions to both bring the investigation Many of the individuals terminated or otherwise disci- to an end and seek to restore relationships with some plined during the investigation were well liked and re- of those harmed by it, it is likely that the impacts of the spected across the ministry and the academic community. investigation would have been more long-lasting. Seeing how they were treated by the investigators and senior management was demoralizing and trust-shattering While the announcement of legal settlements provided for colleagues. As we heard repeatedly throughout our some ministry employees with insight into the reassessinvestigation, a common fear pervading the ministry was ment of the matter that their employer had carried out, the ministry did not provide any explanation for the basis that “if it could happen to them, I could be next.” of those settlements or the validity of the concerns at the With no assurances from supervisors or senior manage- heart of the investigation. It would not have been easy to ment that anyone who worked with administrative health do so given that protecting the privacy of the individuals 383 384 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS involved would have made such an explanation very diffi- re-establish meaningful, conciliatory relationships within cult. The media stories following the leak of the report by an organization: the IU only served to perpetuate confusion. One official Before individuals are capable of engaging in strucfrom the Ministry of Health described the confusion in tural rebuilding, organizations need to acknowledge the following way: and pay attention to the personal stress and trauma … people aren’t infallible and things can happen. caused by the events and ensuing conflicts. And rather than dismissing them or, you know, Efforts at reconciliation cannot be about assigning holding them totally responsible, maybe there blame or conducting a fact-finding mission akin to should be some organizational responsibility … another investigation. I never heard anyone say now that there’s prob For reconciliation to succeed, all those involved and lems at any level. I heard that there was a bunch impacted by the investigation need to be engaged of staff that were fired and then it was reconby the organization in a recovery process that avoids sidered. … It’s like we’ve gone from black to “scapegoating” while at the same time recognizing white … no shades of grey and everything’s good. the real impacts of past events: “the more explicitly As outlined in Chapter 17 the Ministry of Health has organizational … leadership facilitates such a protaken a number of steps in the past few years to support cess, and the more seriously individual department employee morale and engagement. These are good and members take responsibility for their own willingcommendable steps. I believe there is more that can be ness to engage in the process, the better the results done to support the Ministry of Health and its employwill be.”15 ees in acknowledging, from an organizational perspective, the impacts of what happened and in finding a way for- Such a process should not be a form of individual redress for employees, but a means to hear from ward. This way forward must focus neither on retributive them directly about their concerns and experiences fault finding nor on forgetting what happened. Instead, a rather than learning about that through reports such “measured approach that is honest about the need to move as ours. forward without burying the past and that is appropriate to the particular situation” is most likely to be successful.13 The reconciliation process should include facilitated, supported sessions where people discuss what This type of organizational reconciliation is an ongoing happened and employees can express their past and process of establishing and maintaining respect – one present concerns to the organization. These seswhere acknowledging responsibility, repairing trust and sions should provide an opportunity for individuals to taking meaningful action to effect change are critical disclose and discuss both the personal and organizato restoring healthy relationships. As relationships are tion impacts of the investigation and its fallout. re-established, open and honest conversations can take place to help all stakeholders identify barriers to meeting organizational objectives. Borrowing from the work of other ombudspersons with expertise in post-conflict organizational rebuilding,14 I propose the following as some of the factors that should be considered when deciding the steps to take to For a reconciliatory endeavour to have lasting positive influence on the culture of the Ministry of Health, that effort should involve the BCGEU and BC Excluded Employees’ Association. Given the role that these employee representatives play in addressing and resolving employee–employer 13 This spectrum of approaches to peace building is described by Timothy Garton Ash and cited in Katherine Hale and James P. Keen, “The Ombudsman and Post Conflict Department Rebuilding,” Journal of the International Ombudsman Association, Vol. 6, No. 2(2013): 77. 14 Katherine Hale and James P. Keen, “The Ombudsman and Post Conflict Department Rebuilding,” Journal of the International Ombudsman Association, Vol. 6, No. 2(2013) 15 Katherine Hale and James P. Keen, “The Ombudsman and Post Conflict Department Rebuilding,” Journal of the International Ombudsman Association, Vol. 6, No. 2(2013): 78. CHAPTER 18 conflicts, including them in the process would improve conflict resolution moving forward. 18.3.9  An Evidence-Informed Approach to Pharmaceutical Management Moreover, reconciliation can best be effected by hearing This investigation has made clear that the Ministry of all perspectives. We heard expressions of regret from Health, in administering the provincial health system, has some public servants who had been involved in carrying had a longstanding commitment to making policy decisions out aspects of the investigation, and about what had oc- that are informed by evidence. For example, the ministry’s curred. For many of them recounting their involvement to Reference Drug Program requires policy-makers to have us was the first time they had spoken about the matter. evidence about the effectiveness of pharmaceutical therThe Ministry of Health should extend an invitation to cur- apies to determine, among many factors, whether the rent public servants who were part of the investigation province will pay the cost of those therapies. Similarly, the team to participate in the reconciliation process, to the ministry recently developed a new collaborative strategy extent they wish and in a manner that is appropriate. for patient-oriented research16 and continues to support evidence-informed initiatives such as those around chronic disease management.17 The ministry also engages in R 33 epidemiological surveillance and research to estimate the By September 30, 2017, and following consultaprevalence of diseases and other health conditions across tion with the BCGEU and BC Excluded Employthe population to inform decisions-makers on how to best ees’ Association, and in a manner consistent support public health. with its privacy obligations, the Ministry of The ministry’s continued commitment to using evidence Health develop and implement a carefully deto inform its policy initiatives is positive. Evidence-based signed organizational reconciliation program approaches help ensure that the decisions guiding the with the goal of re-establishing positive, reprovincial health system are rationally based, objective spectful professional relationships with staff and transparent – principles that are the cornerstones of and contractors who will productively support an administratively sound health care system. the mandate of the ministry moving forward. As described in this report, several of the ministry’s inThis program should: itiatives that supported evidence-informed outcomes in a. build on the recent ministry initiatives to pharmaceutical management came to an end as a result support employee morale and engagement, of the investigation into employees, contractors and exinvite the participation of ministry staff and ternal researchers. These initiatives formed some of the contractors, Pharmaceutical Services Division’s management strategy, which was developed in part to address recommendations b. involve the active participation of managefrom the Auditor General and the national pharmaceuticals ment, strategy. In the wake of the investigation, the ministry’s commitment to and engagement with the quality control c. include clear objectives and deliverables, or evaluation components of these initiatives were also and compromised. Prior to 2012, the division had strongly supd. be completed within 12–18 months by proported evidence-informed evaluations to monitor initiaviding a final report to all ministry staff and tives for quality control in order to ensure these programs contractors. 16 The BC Support Unit is a multi-partner organization created to support, streamline and increase patient-oriented research throughout B.C. < http://bcsupportunit.ca/>. 17 BC Ministry of Health, “Self-Management Support: A Health Care Intervention” 10 June 2011 . For more information about B.C.’s chronic disease self-management program see . 385 386 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS met their objectives, were cost effective and were having positive, not adverse, impacts on the target populations. R 35 By December 31, 2017, to the extent that such The Ministry of Health did not end these initiatives gaps are found to exist as a result of the review because it determined, after an objective review, they under the preceding recommendation, the Minwere no longer useful or meeting their goals. Instead, istry of Health publicly release a plan, with a the ministry’s decision to end these initiatives were, as reasonable timeline and transparent objectives outlined throughout this report, informed by investigative and deliverables, to address the gaps. conclusions that were based on mere allegations about the conduct of individuals associated with the initiatives. The evidence we reviewed indicated that these initiatives These two recommendations are not to be interpreted were broadly seen as useful, valid and consistent with as implying that any particular method or provider of evithe ministry’s obligations to ensure high-quality, appropri- dence-based drug policy research or program development ate, cost-effective and timely health services for British is to be used. The selection of particular providers is for the Ministry of Health to determine in the public interest. Columbians. While policy-makers always retain the discretion to end or change programs they have previously supported, prudent and effective public administration requires that changes be implemented after a reasoned consideration of the costs and benefits such a decision. That was not the case with the initiatives that the ministry ended as a result of the 2012 investigation. 18.3.10  Positive Affirmation of EvidenceInformed Approaches We heard from several witnesses that the 2012 investigation had a broad, chilling effect within the public service. One of the aspects of that concern related to the perception that government’s commitment to evidence-based decision making had diminished. While we did not invesIn summary, the investigation and the resulting decisions tigate whether this perception was widely held, taking about data and contracts resulted in an arbitrary dismant- a practical, visible step to reinforce with its own workling of some of the ministry’s engagement in evidence-in- force government’s commitment to evidence-based deciformed pharmaceutical management and related health sion-making would appear advisable. A clear statement services. This was perceived by some as a weakening of from leadership in government that evidence-based dethe ministry’s commitment to evidence-informed evalua- cision-making by public servants is still highly valued is tion of its pharmaceutical initiatives. both timely and worthwhile. R 34 R 36 By September 30, 2017, the Ministry of Health review and assess the extent to which the termination of evidence-based programs during the internal investigation may have created gaps that now remain in providing evidence-informed, safe, effective and affordable drug therapy and related health care services to British Columbians. By March 31, 2018 government establish a new category of Premier’s Awards (in addition to the existing categories of leadership, innovation, legacy and partnership) to recognise public servants whose work is outstanding in the area of evidence-based or evidence-informed policy or program development. CHAPTER 18 18.3.11  UBC’s B.C. Academic Chair in Patient Safety R 37 By March 31, 2018, government grant $200,000 As discussed in Chapter 7, the B.C. Academic Chair in to the University of British Columbia (UBC), FacPatient Safety at the University of British Columbia (UBC) ulty of Medicine, Department of Anaesthesiolwas created in 2005 as part of a broader government ogy, Pharmacology & Therapeutics. initiative focused on improving patient safety throughout the province. As a sign of its commitment to patient safety, the Ministry of Health provided UBC with a $3 In 2012 just as the events at the Ministry of Health were million endowment to fund the work of the Chair on an beginning to unfold, UBC wrote to the ministry regarding ongoing basis. In the cover letter to UBC providing the the financial challenges of the 2005 endowment. That grant funding, the Deputy Minister wrote that the grant issue was not addressed at the time, quite possibly because of the investigation. was intended: It is outside the scope of my investigation to consider … to support the development of leadership capwhether the endowment is sufficient. However, to the acity in the field of patient safety and through extent it was not considered earlier, it should be dealt research and education the provision of safe and with now. appropriate care to patients in British Columbia and Canada. The ministry’s initial $3 million endowment grant was less than the usual amount required to support an academic chair position at UBC. The position was not filled until Dr. Maclure agreed to accept the role in 2009. At that time, UBC and the ministry agreed that Dr. Maclure would work part-time in the Chair position while continuing part-time in his prior position at the ministry. When Dr. Maclure’s ministry employment abruptly ended in 2012, UBC agreed to make his Chair position a full-time role. This meant that UBC was required to pay his full-time salary rather than paying only a part-time salary. UBC’s decision had the effect of mitigating any damages Dr. Maclure had arising from his constructive dismissal by the province. However, to pay Dr. Maclure his full-time salary, the Department of Anaesthesiology, Pharmacology & Therapeutics in the Faculty of Medicine had to divert about $40,000 a year from its departmental budget to fund the Chair position. This has created an accumulated $200,000 budget deficit since 2012. The department told us that its budget deficit will continue to accumulate because of the interruption of the funding model, which means that the funds it would otherwise use to support additional research is not available. R 38 By March 31, 2018, UBC and the government meet to discuss the sufficiency of the 2005 endowment regarding patient safety. 18.3.12  BC Coroners Service Policy on Disclosure of Estate Records As described in Chapter 15, the BC Coroners Service did not have clear policy guidance in responding to Mr. MacIsaac’s family’s request for access to a document that RCMP computer specialists, in support of the Coroner’s Service, had discovered on Mr. MacIsaac’s password-protected computer in the course of the investigation. R 39 By September 30, 2017, the BC Coroners Service develop a policy about disclosure, to a deceased’s family or personal representative, of documents discovered on the deceased person’s electronic devices, including password-protected and cloud-stored documents. 387 388 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS 18.4  Government’s Consideration of Recommendations In many reports by Officers of the Legislature, including by the Ombudsperson, the public authority to which recommendations are directed is given the recommendations in draft form. Doing this allows the authority to provide feedback on the overall advisability of the recommendation or on a specific detail. It also offers the public authority an opportunity to respond to the report – with the response included in the report, thus providing a transparent accounting of whether the authority accepts the recommendations. I did consider following this practice for this investigation. However, after much deliberation, I concluded that, in the unique circumstances of this referral from a legislative committee, including the fact that government as a whole (rather than a specific ministry) must be the body that responds to some of these recommendations, the better course was to provide the recommendations only at the time of this report’s issuance. This means that government has not had an opportunity to learn of, let alone reflect on, these recommendations before the deposit of the report. Nevertheless, I do not believe that an extended time for providing an overall response on the recommendations is necessary. Even in cases where recommendations are provided in advance of publication of a report, a two week response time is sometimes required. R 40 By April 20, 2017, government provide, in a single document, a response to each of the preceding recommendations, including stating whether it does or does not accept the recommendation. In the event government is of the view it cannot give due consideration to any particular recommendation within that time, it may identify the recommendation, the reason further time is required and the timeline within which it will respond. My office will post this response on the Ombudsperson website. 18.5  Ongoing Monitoring When the Ombudsperson issues a major systemic or other special report, we normally monitor implementation of accepted recommendations for up to five years. We publish periodic updates on the progress of public authorities in implementing those recommendations that were accepted, and indicate whether, in our view, the public authorities’ implementation satisfies the letter and spirit of our recommendations. I intend to monitor government’s implementation of these recommendations in a similar manner. R 41 By April 30, 2018, government provide a written status report to the Ombudsperson on the implementation of the recommendations made in this report, and at such other times as required by the Ombudsperson. APPENDICES 390 MISFIRE: THE 20l2 MINISTRY OF HEALTH EMPLUYMENT TERMINATIUNS AND RELATED MATTERS APPENDICES APPENDIX A SEPTEMBER 9, 2015: SPECIAL DIRECTIONS REGARDING REFERRAL TO OMBUDSPERSON 391 392 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS 1. On July 29, 2015, the Select Standing Committee on Finance and Government Services (the Committee) adopted a motion pursuant to s. 10(3) of the Ombudsperson Act 1 to: “… refer the Ministry of Health terminations file to the Ombudsperson for investigation and report as the Ombudsperson may see fit; including events leading up to the decision to terminate the employees; the decision to terminate itself; the actions taken by government following the terminations and any other matters the Ombudsperson may deem worthy of investigation. The Committee trusts that his investigation can conclude in a timely manner.” 2. The Committee considers it helpful to provide these special directions to the Ombudsperson, without purporting to limit any subject matter or line of inquiry the Ombudsperson may consider appropriate to investigate in relation to this referral. 3. The Committee’s referral is predicated on the Government of British Columbia acting in accordance with its representations to the Committee that the Government will take the following steps (“Government Actions”) to facilitate the Ombudsperson’s investigation of this referral, namely: (a) Proclaim into force the Ombudsperson Amendment Act, 2015, S.B.C. 2015, c. 30; (b) Provide the Ombudsperson with complete access to all required and relevant information, without limitation, in accordance with established protocols; (c) Apply the Protocol Agreement between the Ombudsperson and the Government of British Columbia (2011), covering written and electronic records described in s.18 of the Ombudsperson Act, to all matters covered by s. 18 including oral statements; 1 (d) Apply the existing Memorandum of Understanding between the Ombudsperson and the Government of British Columbia relating to legal advice, to ensure that the Ombudsperson has access to all relevant legal advice provided to Government in relation to the subject matter of this referral; (e) Release terminated employees and contractors from any confidentiality provisions including those entered into as part of the resolution of any litigation, in order to support their full participation in the investigation; and (f) Approve the budget recommended by the Committee arising from this referral. Subject Matter 4. Without limiting the matters the Ombudsperson considers appropriate to investigate arising from the Committee’s referral, the Committee directs that the matters subject to investigation will include: (a) The Ministry of Health’s employment terminations of Ramsay Hamdi, David Scott, the late Roderick MacIsaac, Dr. Malcolm Maclure, Robert Hart, Dr. Rebecca Warburton and Ron Mattson; (b) The termination of the contract of Dr. William Warburton and, to the extent the Ombudsperson determines the issues to be related, the termination of the contracts of other contract researchers; (c) The events leading up to the terminations, the terminations themselves, decisions to suspend and/or reinstate data access and actions taken by Government following the terminations referred to in (a) and (b), including statements regarding the involvement of the Royal Canadian Mounted Police in relation to the terminations; (d) To the extent the Ombudsperson determines that it is related to (a), (b) or (c) above, any matter related to provincial Government involvement with the following pharmaceutical research organizations, including matters related to funding, contracts and data access: Section 10(3) of the Ombudsperson Act states: The Legislative Assembly or any of its committees may at any time refer a matter to the Ombudsperson for investigation and report. APPENDICES (i) University of British Columbia Therapeutics Initiative; (ii) University of Victoria Alzheimer’s Drug Therapy Initiative; (iii) British Columbia Centre for Excellence in HIV/AIDS. (e) The nature and extent of the involvement of the following in the matters described in (a), (b), (c) and, if applicable, (d) above at any relevant time: (i) any member of Executive Council; (ii) the Ministry of Health; (iii) the Ministry of Finance; (iv) the Ministry of Justice; (v) t he Government Communications and Public Engagement Office; (vi) the BC Public Service Agency; (vii) the Office of the Premier; and (viii) the Office of the Deputy Minister to the Premier. Investigative Process 5. Without altering or limiting the Ombudsperson’s authority to conduct his investigation in private subject to section 9 of the Ombudsperson Act and to otherwise control his process, develop an investigation plan and carry out his procedures in the fashion he considers necessary or appropriate, the Committee recognizes and directs as follows with regard to the Ombudsperson’s investigation process: (a) The Ombudsperson may in his discretion limit the scope of the investigation where he considers it would unnecessarily or improperly duplicate any other investigation, report or statutory process under the mandate of an Officer of the Legislature. (b) The Ombudsperson may in his discretion defer any portion of the investigation or report where he determines that this is appropriate or necessary in light of some other investigatory or adjudicative process. (c) The Ombudsperson may in his discretion refer any matter to the appropriate oversight, investigatory, or regulatory body in accordance with the Ombudsperson Act where the Ombudsperson has reasonable grounds to believe an offence or professional or ethical misconduct may have occurred. Budget 6. The Ombudsperson is directed at the earliest opportunity, and prior to undertaking his investigation, to submit to the Committee for approval a detailed supplementary budget submission for 2015-2016 arising from this referral, which budget is intended to ensure that the Ombudsperson is able to conduct this investigation thoroughly without impairing his ability to carry out his other work under the Ombudsperson Act in response to complaints and in the public interest. Additional 2016-2017 budgetary funding, as required, shall be considered in conjunction with the Committee’s regular annual budgetary submission process. Reporting 7. Without limiting the Ombudsperson’s reporting authority or purporting in any way to fetter the Ombudsperson’s independent mandate to make the findings and recommendations he considers appropriate in accordance with his usual review standards regarding any matter arising from this referral in his final report, the Committee directs as follows: (a) The Ombudsperson may in his discretion provide such interim reports to the Committee as the Ombudsperson considers necessary on any administration or budgetary matter, any material impediment to the investigation, or any other matter. 393 394 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS (b) Should the Ombudsperson determine that: i. records including documentation and correspondence related to the subject matter referred are unavailable due to records destruction or other reason; ii. the Ombudsperson does not have access to a key witness or witnesses; or iii. the Government Actions referred to in paragraph 3 have not been satisfactorily met, the Ombudsperson’s Final Report shall include a description of the nature, extent and apparent cause of such unavailability or insufficient Government Actions and the impact on the investigation if that can be assessed. (c) In order to make the report public, the Ombudsperson shall deposit the Final Report with the Speaker of the Legislative Assembly in accordance with the Ombudsperson Act. The report shall be provided to the Office of the Speaker whether the Legislative Assembly is in session, adjourned or dissolved. (d) The Ombudsperson shall publish and publicly distribute the Report, in print and electronic format, following its release by the Speaker of the Legislative Assembly of British Columbia. APPENDIX ACRONYMS USED IN THE REPORT 396 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS Acronym Full Term Description of Term ACFE Association of Certified Fraud Examiners The Association of Certified Fraud Examiners describes itself as “the world’s largest anti-fraud organization and premier provider of anti-fraud training and education.” The ACFE has developed a process for assessing and qualifying “Certified Fraud Examiners” through administering an exam. It was founded in 1988, and is a private, international organization, headquartered in Texas with chapters in 60 countries. ADEPT Academic Detailing Evaluation Partnership Team Academic detailing is a method of continuing education in which a trained health care professional meets with a prescriber in their practice setting to provide one-on-one evidence-based information. It is intended to provide objective, evidence-based information, and it is used to influence changes in prescribing practices to improve patient outcomes. ADEPT was a national initiative formed by the Canadian Academic Detailing Collaboration in 2008 to evaluate how academic detailing in Canada had affected real-world physician prescribing patterns. See Chapter 4 for further details. ADTI Alzheimer’s Drug Therapy Initiative A multi-study, multi-year research program coordinated by the Ministry of Health to assess the effectiveness of cholinesterase inhibitors, a class of drugs prescribed to treat Alzheimer’s disease. See Chapter 4 for further details. BCGEU BC Government and Service Employees’ Union The main labour union representing bargaining unit staff employed by the Government of British Columbia. BCMA British Columbia Medical Association (now known as Doctors of BC) The professional association for physicians in British Columbia. It advocates for physicians, develops health policy position papers, and maintains collaborative committees with representation from physicians and government. CCHS Canadian Community Health Survey A cross-sectional survey created by Statistics Canada that collects information related to health status, health care utilization and health determinants for the Canadian population. The primary use of the CCHS data is for health surveillance and population health research. CG Comptroller General The Office of the Comptroller General is responsible for the overall quality and integrity of the government’s financial management and control systems. APPENDICES Acronym Full Term Description of Term CIHI Canadian Institute for Health Information An independent, not-for-profit national organization created in 1994 that incorporates pan-Canadian health databases and provides information to decision-makers to inform improvements in health care systems across the country. CIHR Canadian Institutes of Health Research The independent federal agency for health research investment. The CIHR’s mission is to create new scientific knowledge and to enable its translation into improved population health, and more effective health services and products. CNODES Canadian Network for Observational Drug Effect Studies The Canadian Network for Observational Drug Effect Studies is a pan-Canadian collaboration of researchers that was created as part of the Drug Safety and Effectiveness Network (DSEN) to coordinate and harness the information contained in various healthcare databases across multiple jurisdictions. This allows for greater evaluation and more precise estimates of drug safety and effectiveness because it is based on larger population datasets across all participating provinces and territories. See Chapter 4 for further details. CPPM Core Policy and Procedures Manual The Core Policy and Procedures Manual is the reference source for government-wide financial administration and management policy and procedures. It outlines government financial management and administration objectives, standards, directives and practices. DARS Data Access, Research and Stewardship In 2012, this was a section of the Office of the Chief Data Steward and the Information Management and Knowledge Services branch of the Health Sector Information Management and Information Technology division of the Ministry of Health. DBC Drug Benefits Committee An independent advisory body, made up of 12 members, that makes evidence-informed recommendations to the Ministry of Health about the listing of drugs on the PharmaCare program formulary. Their recommendations form part of the Drug Review Process. DI Drug Intelligence In 2012, this was a branch of the Pharmaceutical Services Division of the Ministry of Health that was tasked with basing PharmaCare coverage decisions on a critical assessment of the available clinical evidence. 397 398 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS Acronym Full Term Description of Term DSEN Drug and Safety Effectiveness Network An initiative by the Canadian Institutes for Health Research to build a coordinated national research network and develop evidence on the real-world safety and effectiveness of pharmaceuticals, and make the results available to regulators, policy-makers, health care providers and patients in Canada. See also CNODES. DUO Drug Use Optimization In 2012, this was a branch of the Pharmaceutical Services Division of the Ministry of Health, tasked with reviewing prescription drug use patterns and comparing them with evidence-based best practices to design better and more cost-effective programs. EQIP Education for Quality Improvement in Patient Care An initiative developed between the Pharmaceutical Services Division, Ministry of Health, the BC Medical Association (now Doctors of BC), UVic and UBC beginning in 2006 to provide family physicians with personalized computer-generated prescribing portraits for a particular disease or health topic with educational messages and case studies that “encourage reflection on practice.” These portraits were intended to create a “snapshot” of an individual physician’s prescribing practices to improve overall patient care, safety and cost-effectiveness. See Chapter 4 for further details. GCPE Government Communications & Public Engagement The agency responsible for coordinating media contact for client ministries and communicating information on government programs, services, policies and priorities to the public. HSIMIT Health Sector Information Management and Information Technology In 2012, a division of the Ministry of Health, within which was housed the Information Management and Knowledge Services branch, and the office of the Chief Data Steward. HSS Health and Social Services The group of solicitors within the Legal Services Branch, Ministry of Justice, whose client ministries include the Ministry of Health and Ministry of Children and Family Development. IAAS Internal Audit and Advisory Services A branch of the Ministry of Finance which conducts operational, financial management and compliance audits of ministry programs across government. APPENDICES Acronym Full Term Description of Term IMKS Information Management and Knowledge Services In 2012, a branch of the Health Sector Information Management/Information Technology division of the Ministry of Health. Data Access, Research and Stewardship (DARS) was a section of the IMKS branch. IMKS was previously known as the Strategic Policy, Information Management and Data Stewardship Branch (SPIMDS). ISA Information Sharing Agreement A document which sets out the terms and conditions under which a ministry releases administrative health data to other public bodies or to an external agency. It is meant to describe the responsibilities of the parties in relation to the shared data, including a variety of security measures and steps required of the receiving party. An ISA includes the provisions listed in a Privacy Impact Assessment (PIA) developed by government. IU Investigation and Forensics Unit A unit under the Office of the Comptroller General, Ministry of Finance, which conducts investigations into allegations of fraudulent activities within ministries of government, and other provincial public bodies. LSB Legal Services Branch, Ministry of Justice Serves as the legal advisor to the Government of British Columbia. The Legal Services Branch is divided into the Barrister Division, which conducts civil litigation and appears on behalf of government for constitutional and administrative law matters, and the Solicitor Division, which is further divided into groups which support and advise related ministries. MMP Medication Management Project The Medication Management Project is a collaboration between the Pharmaceutical Services Division of the Ministry of Health and the BC Pharmacy Association related to pharmacist involvement in managing prescriptions for patients. MSP Medical Services Plan The Medical Services Plan covers much of the cost of health care for residents of British Columbia. It pays for medically required services of physicians, and provides coverage for other health benefits. 399 400 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS Acronym Full Term Description of Term MTICS Ministry of Technology, Innovation and Citizens’ Services The ministry responsible for technological services provided by government, including Service BC, BC Online, and the BC Services Card, and also tasked with encouraging innovation and investment in the province by the technology sector. In 2012, it was known as the Ministry of Labour, Citizens’ Services and Open Government and was responsible for the Office of the Chief Information Officer OCIO Office of the Chief Information Officer Responsible for the strategic direction of policy, standards and management of information technology across the provincial government. This includes security of government information and technology infrastructure. In 2012, the OCIO was part of the Ministry of Labour, Citizens’ Services and Open Government. Since September 2015, it has been part of the Ministry of Finance. PAD Provincial Academic Detailing A method of continuing education for clinical practitioners in which a trained health care professional meets with a prescriber in their practice setting to provide one-on-one, objective and evidence-based information, with the goal of effecting changes in prescribing practices that can improve patient outcomes. PEG PharmacoEpidemiology Group The PharmacoEpidemiology Group is a working group of the Therapeutics Initiative. PEG uses epidemiological methods to analyze linked administrative data from PharmaNet, the Medical Service Plan and hospitals. PEG evaluates, analyzes and monitors the use and outcomes of prescription drugs. PhORSEE Pharmaceutical Outlook Research on Special Authority A $2.1 million grant from PSD to the College of Pharmacists of BC in March 2008 to improve patient safety through evidence-based research on pharmaceutical services delivery in British Columbia. See Chapter 4 for further details. PHN Personal Health Number A unique lifetime identifier for health care given to each resident of British Columbia enrolled with the Medical Services Plan. Because it remains the same, regardless of any changes to personal status, it is considered identifiable health data. APPENDICES Acronym Full Term Description of Term PIA Privacy Impact Assessment An assessment tool used by provincial government ministries to evaluate privacy impacts, including compliance with the privacy protection responsibilities under the Freedom of Information and Protection of Privacy Act. Conducting a Privacy Impact Assessment is a requirement whenever a ministry embarks on a new initiative or updates a current initiative. POER Policy Outcomes, Evaluation and Research In 2012, a branch of the Pharmaceutical Services Division of the Ministry of Health, tasked with supporting the other branches in PSD by providing advice and assistance through research and analysis. PSA BC Public Service Agency The government agency responsible for developing human resource services within government and providing advice to ministries on the management, development and recruitment of employees, including hiring, and disciplinary actions including dismissal. PSC PharmaNet Stewardship Committee Committee established to oversee PharmaNet, a computerized pharmacy database that stores information about medication dispensed to patients in order to prevent harmful drug interactions, and make decisions about the release of patient record information for use in health research. The committee was composed of representatives from the Ministry of Health, the BC College of Pharmacists, an academic health researcher, and a representative of the general public. The PharmaNet Stewardship Committee was dissolved on May 31, 2012, and its role and responsibilities amalgamated into the Data Stewardship Committee, an up to seven member committee appointed by the Minister of Health. PSD Pharmaceutical Services Division, Ministry of Health The division within the Ministry of Health which in 2012 was responsible for assessing and evaluating drug effectiveness and physician prescribing practices, pharmaceutical research and evidence development, and other related research and analysis. Now titled Medical Beneficiary and Pharmaceutical Services Division (MBPSD). 401 402 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS Acronym Full Term Description of Term PSLT Pharmaceutical Services Leadership Team In 2012, a team composed of the ADM and executive directors within the Pharmaceutical Services Division to coordinate administrative activities and communications and share information within the division. PSRT Pharmaceutical Services Research Team A committee of Pharmaceutical Services Division directors and managers that would meet regularly to exchange information, coordinate the research activities of the Pharmaceutical Services Division, and liaise with external researchers. RDP Reference Drug Program An example of evidence-based policy making in British Columbia. Administrative health data was used to assess drug therapies and ensure the most cost-effective drugs received coverage and were prescribed, thus managing costs to the province without loss of therapeutic effectiveness. RFP Request for Proposal A manner of soliciting bids from potential suppliers, companies or researchers to perform work for a particular service, project or program, usually because the in-house capacity or technical expertise to conduct the work does not exist. SDWG Study Design Working Group The Study Design Working Group was a committee created as part of the Alzheimer’s Drug Therapy Initiative (ADTI). It was responsible for advising on aspects of the study design such as what data to collect, outcome measures and measurement tools. TI Therapeutics Initiative An independent organization established in 1994 by the Department of Pharmacology and Therapeutics at the University of British Columbia to develop evidence-based information on prescription drug therapies and provide it to physicians, pharmacists and policy-makers. TUA Transfer under Agreement A type of contribution agreement whereby government agrees to transfer funds to a third party for which it expects certain deliverables or outcomes to be met, but not in the form of a direct provision of goods or services. APPENDICES 403 APPENDIX C GOVERNMENT’S RELATIONSHIPS WITH UNIVERSITIES — FINAL REPORT, 2008 RESEARCH RELATIONSHIPS TOOL KIT, 2010 404 MISFIRE: THE 20l2 MINISTRY OF HEALTH EMPLUYMENT TERMINATIUNS AND RELATED MATTERS APPENDICES Research Relationships Between the Province of British Columbia and British Columbia’s Universities Final Report JanuaRy 2008 November 2007 405 406 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS Table of Contents Introduction 1 Scope 1 The Value of Research Relationships to the Province of British Columbia and universities Objectives 2 3 General Principles Governing Research Relationships between the Province of British Columbia and universities 4 Results 5 Conclusions 7 Recommendations 7 Contact for Ministries 7 Contact for universities 7 aPPEnDIX 1 Terms of Reference 8 APPENDICES Introduction both parties. For the Province, the tool kit was The Province of British Columbia and the six public Legal Services Branch, the Intellectual Property 407 approved by the Ministry of advanced Education, universities have enjoyed a long relationship of Program and Risk Management Branch. For the research collaboration. In fiscal year 2004/05, the universities, these tools were endorsed by the Vice total value of these research relationships reached Presidents, Research. $33 million. However, negotiation of research agreements between universities and the Province Scope has been challenging at times as the different parties endeavor to adhere to their respective policies and This document and its associated resources address regulations, many of which can appear to conflict. those situations where the Province of British Columbia enters into an agreement directly with a univer- In June 2006, a working group was formed sity (or universities) to have research conducted in an comprised of representatives from the Ministries of area directly related to government priorities, policies Health, Education, advanced Education, Children or individual Ministry mandates. More specifically, and Family Development, Finance, the university • of British Columbia, university of northern British Research services, investigation, testing, analysis Columbia and the university Presidents’ Council of and evaluation to British Columbia. The stated purpose of the working > group was to streamline the process of arriving Increase generalized knowledge or understanding, or at research agreements between the Province and > BC’s public universities. recommend advice or solutions for a particular subject matter/issue for overall benefit to the Province of BC; or This document provides the working group’s final report as well as a set of “tools” designed to guide • a defined research project with specific the development of research relationships and the objectives and deliverables that is for the direct legal instruments that support them. The context for benefit or implementation in ministry programs research relationships between the Province of British or operations. Columbia and universities is described, as well as the These documents and tool kit do not address: most common objectives of each party and a set of principles that should guide these research relation- • Research funding provided by independent ships. More specific guidelines, sample agreements research funding agencies such as the Michael and other tools for developing agreements that govern Smith Foundation for Health Research, research relationships are also included. Genome BC; • These resources were developed through a Columbia Knowledge Development Fund; collaborative process involving all the members of the working group. (Refer to appendix 1 for the • Terms of Reference that guided this work). The tools Staffing, secondments or hiring of co-op students; and sample agreements have all been endorsed by RESEARCH RELATIONSHIPS The Forest Investment account and the British FINAL REPORT 408 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS • Purchase of finished research papers, reports, culminate in democratically elected representatives. or products; Some of the government’s underlying goals are to protect the public interest, responsibly manage • Websites or training delivery programs; • Personal consulting arrangements between indi- public policies. Standards for ethical behavior and vidual faculty members and the Province, and; financial accountability are growing increasingly Educational Services contracts (e.g., for the stringent. Governments must ensure that all of their • public resources and develop and administer sound activities are carried out in a transparent fashion development of curriculum). and that any public expenditure can be demonstrated to result in a direct public benefit or that it The Value of Research Relationships to the Province of British Columbia and Universities contributes to the broad public interest. In contrast, the organization of a university is generally more dispersed, with significant Governments and universities are natural partners. authority given to individual schools, faculties They are both designed to serve the public interest and departments. universities’ missions are to and both have an interest in conducting research. For educate, to develop and disseminate new universities, research is integral to their mandates and knowledge and to provide community service. forms part of their legislated mandates. Governments academic intellectual independence is highly have an interest in supporting a capacity for pure valued; the ability of researchers to discuss their and applied research to drive innovation and knowl- work with colleagues and to publish their results edge transfer, as well as an interest in more directed is a cornerstone of the academic enterprise and research targeted to specific public policy issues. The supports the creation of new scientific and other benefits that accrue to the participants of provincial knowledge. universities are accountable to multiple government-university research relationships, as stakeholders including students, provincial and well as to society as a whole, are substantive, rang- federal governments and the communities in which ing from an increase in the stock of new knowledge, they reside. to rich educational experiences for students, to new The commonalities and differences between and improved public policies, services and products. universities and governments offer the potential These benefits result in improved social, economic for a range of successful research collaborations. and environmental conditions for Canadians. The academic independence of university Governments and universities also differ in researchers can provide government with valuable, important ways. For example, their cultures and objective assessments of policies and practices. In their missions differ. Government bureaucracies are addition, provincial government jurisdiction in a hierarchical, with clear chains of command that wide range of social, economic and environmen- 1 While university colleges, colleges and provincial institutes are not specifically addressed in this document, much of the framework described here could provide a basis for preparing research agreements involving these post-secondary education institutions. RESEARCH RELATIONSHIPS FINAL REPORT APPENDICES Objectives tal matters can present university researchers with important research opportunities. The Provincial Government and universities have In British Columbia, universities receive their different reasons for entering into research relation- mandates from the provincial government through ships. The Working Group identified the following provincial legislation. The relevant acts provide objectives in order to develop proposed approaches universities with their mandates for research, as well that would meet the needs of both parties. as considerable autonomy with which to carry out their mandates. Researcher Objectives The Province of British Columbia, by virtue of its • To validate the applicability of a researcher’s interests to society; responsibility for post-secondary education and provincial economic development, has an inter- • est in fostering knowledge development, transfer To address and to potentially inform important public policy questions; and commercialization. The Province demonstrates • its support for university research in many ways, To have access to challenging and vexing problems; including financial support for organizations such as the Michael Smith Foundation for Health Research, • the BC Knowledge Development Fund, Genome To receive financial support for research programs; BC and the Leading Edge Endowment Fund. These • organizations play a critical role in building pure To obtain valuable educational experience for students; and and applied research capacity for British Columbia and typically have broad mandates to fund research • To gain access to government-held data. based on traditional peer reviewed assessments. Province of British Columbia Research Objectives In addition to supporting these research organizations, the Province of British Columbia will enter • into research agreements directly with universities To enhance British Columbia’s economy, society, culture and/or the environment; on matters related to individual Ministry mandates. It is these types of relationships that this document • is primarily concerned with. To inform the Provincial Government’s strategic priorities; • To validate and/or assess provincial government programs and policy decisions; and • To support the informed development and management of provincial government standards and regulations. RESEARCH RELATIONSHIPS FINAL REPORT 409 410 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS contracts for service. It is critical that the General Principles Governing Research Relationships between the Province of British Columbia and Universities appropriate legal instrument be chosen for each project; • Ownership and access rights to research outputs including intellectual property, reports While the approach taken on any given project and data will be determined at the project will need to consider the specifics of that project, outset and will be appropriate to the research in general the following principles govern most relationship and the legal instrument employed research relationships involving universities and in creating the relationship. These decisions the Province of British Columbia: will be guided by the need for researchers • to retain reasonable freedom to operate in Both groups operate in complicated and relation to intellectual property (i.e. to use constrained environments that are bounded the knowledge or intellectual property by legislation, standard operating procedures, generated in teaching, in future research, and prescribed authorities. universities and the publications and in the practice of their Province of British Columbia shall endeavor to professions), and the Province of British understand each other’s environments and work Columbia’s need to receive project reports in within the existing systems on projects that forms and on terms of use that suit its purpose; provide mutual benefit; • • Both groups acknowledge the need for research will vary according to the nature of timeliness and transparency and to ensure the research relationship; that funds are controlled, accounted for and well-managed within generally-accepted finan- • • maintained. universities do not conduct secret Both groups are subject to the Freedom of research, and scientifically significant advances must be publishable in the open literature without unwarranted delay or editorial restrictions. respect the need to adopt appropriate measures Publications will not contain sponsor confiden- to protect personal information; tial information or personal information; all agreements will be made in the corporate • name of the partners and in the case of Since much university research is actually performed by graduate students, it is also universities, not in the name of faculties, • The core values of academic freedom must be cial, procurement and reporting frameworks; Information and Protection of Privacy Act, and • Funds provided for the indirect costs of schools, institutes or individual researchers; important to keep their academic needs in The nature of individual research relationships postdoctoral fellows, and university faculty mind. undergraduate and graduate students, between the Province of British Columbia and must ultimately be free to disseminate their universities may take many different forms research results, and students must be permit- including grants, transfer under agreements ted to defend and publish their theses; (also known as contribution agreements) and RESEARCH RELATIONSHIPS FINAL REPORT APPENDICES • Proprietary and sensitive data and information Documents were developed for use in the belonging to each party must be protected following situations: from unauthorized, inadvertent, or untimely disclosure; • Future public use of certain research outputs by • Research Grants (Sample Grant Letter); • Sponsored Research agreements (Transfer under agreement); and the university or researcher will acknowledge • the financial contribution of the Province of General Service agreement). British Columbia; • • Service Contracts (Schedule F for use in a Conduct of research will be in accordance with There are number of elements that are common the university’s research policies regarding the to all three types of relationships. In each case, use of human subjects, animals, radioactive one party to the resulting agreement is the materials and biohazards; and relevant Ministry and the other is the university; the agreement may also include an affiliated The Province of British Columbia does not teaching hospital as a third party. The university assume risk for commercial use of research is always provided with the right to publish all results or intellectual property developed in non-confidential information that results from its the course of carrying out a research project. research. In all cases, the Ministry normally requires The university’s licensing of intellectual appropriate acknowledgement in publications. property developed with financial support Indemnification is addressed through a standard of the Province of British Columbia shall be set of mutual indemnification clauses. In all cases structured so as to not expose the Province overhead may be included in the total price, as per to third party liability. university policy. There three types of relationships are Results summarized below. The key outcome of the working group’s work is Research Grants (STOB 77) the development of a tool kit to assist the Province and universities in arriving at mutually agreeable These are the simplest form of research relationship research agreements. The tool kit consists of: • Sample agreements • Reference Table • Reference documents and have the least number of specified deliverables and terms and conditions. normally initiated by the researcher, in this form of relationship, no specific result is specified and no financial reporting is required. Payment is received up-front as a lump sum and no budget is normally required, except SAMPLE AGREEMENTS as part of an application, if required. The Grant The Working Group developed sample agreements does not include terms relating to intellectual that it recommends for use in Province-funded property and the university retains unrestricted research projects conducted at BC universities. publication rights. RESEARCH RELATIONSHIPS FINAL REPORT 411 412 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS In these contracts, the Province purchases rights to Sponsored Research Agreements (STOB 80; Contribution Agreement; Transfer Under Agreement) all new intellectual property and may therefore use the intellectual property without restriction. The Province may provide the university with a royalty- These research relationships are often the most com- free perpetual license to use the intellectual proper- plex. Projects defined by these types of agreements ty for academic and educational purposes. a waiver may be initiated by either party and are defined in a of moral rights by the researcher(s) may be required. detailed work plan; researchers report on the research The Province will determine the nature of release of results as per a Statement of Work that is attached in data and/or reports. the agreement as Schedule a. a detailed financial report is also required. a budget is either included in In these contracts a budget is not required, however, Schedule B or is included in a proposal developed a Statement of Work is required and constitutes by the university researcher. Payment schedules are Schedule a. linked to reporting, milestones or deliverables that are well described in Schedule B. an up-front payment REfERENCE TABLE for a portion of the budget should be included to pre- a Reference Table was also developed as a guide vent such research projects from operating in deficit. to help Ministry representatives and university In Sponsored Research agreements, the university research administrators determine: or researcher owns all results, data, inventions, • improvements and other IP produced by the project The appropriate document to be employed for a particular research relationship; and in accordance with the university’s policies. The • Province is granted rights/licenses to use intellectual The principles behind each section of the document. property for non-commercial uses. REfERENCE DOCUMENTS Confidentiality provisions are included that require all confidential information provided by each party a set of Reference Documents were also collated, to remain confidential. some of which were created by the group, for convenient consultation by parties involved in Service Contracts (STOB 60 or 61; General Service Agreement; Service Contract) developing agreements. The documents are: • Service Contracts are normally initiated by the Excerpts from the Province’s Core Policy and Procedures Manual on transfer payments, Province. These relationships are referred to as procurement and advance payments; General Service agreements when the value of the contract is below $250,000 or Service Contracts • when the value is over $250,000. These research Fact Sheet on Personal Consulting activities of academics; projects often arise as a result of a need for advisory • services or specific expertise for the direct use or Provincial government policy on reimbursable GST benefit of the Province. a payment schedule is negotiated and included as Schedule B. RESEARCH RELATIONSHIPS FINAL REPORT APPENDICES • • Fact Sheet on Produced Materials and 3. That a review of the proposed Implementation Intellectual Property Plan be conducted 24 months after Sample Employee/Research Confidentiality implementation. agreement • Contact for Ministries Glossary Diana Lucas Conclusion Ministry of advanced Education Finance & administrative Services Branch There was excellent consensus within the Working PO Box 9178 Stn Prov Govt Group that the Provincial Government-university Victoria BC V8W 9H8 research relationship resulted in a high degree of (250) 356-2556 mutual benefit and there was a strong willingness Diana.Lucas@gov.bc.ca by all participants to ensure that the relationship continued to develop in the most efficient and Contact for Universities effective manner possible. Christine Massey It is expected that the Tool Kit developed by the Director, Policy and Research Working Group will ease the development of university Presidents’ Council of British Columbia agreements to support research relationships 400–880 Douglas Street between the provincial government and Victoria, BC V8W 2B7 universities. Feedback regarding the Tool Kit may (250) 480–4839 be directed to the contacts identified on this page. cmassey@tupc.bc.ca Recommendations as a result of the series of discussions and meetings, the Working Group has made the following recommendations: 1. That the Final Report and the documents be disseminated to all Ministries of the Province of British Columbia as provincial government policy and practice, effective January 30, 2008; 2. That the Vice Presidents of Research of British Columbia universities adopt the Final Report and the documents produced by the Working Group as guidelines when conducting research sponsored by Ministries of the Province of British Columbia effective January 30, 2008; RESEARCH RELATIONSHIPS 7 FINAL REPORT 413 414 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS Appendix 1 • Mario Kasapi, university-Industry Liaison Office, The university of British Columbia. Terms of Reference TERM Working Group on Provincial Government— University Research Agreements The Working Group will be constituted for a time- PURPOSE recommendations to TuPC and to the Province limited period, meeting over a period of 4 months, with a goal to complete its work and make of British Columbia by September 30, 2006. To develop a set of principles and recommend contract language templates and/or guidelines for BACkGROUND research agreements that are satisfactory to both the Province of British Columbia and the universities universities and the Province of British Columbia of British Columbia. While university colleges, col- regularly enter into agreements for research. The leges and provincial institutes are not represented primary value is in new knowledge and solutions on this Working Group, it is anticipated that this generated by the research that directly benefits work should provide a good basis for preparing social, economic and cultural needs, with the research agreements involving these public added value of training students in the advancement post-secondary education institutions as well. of research and development. a variety of instruments has been used, including MEMBERShIP • • contracts for services, contribution agreements and Christine Massey, Director, Policy & Research, custom-built research agreements. alternatively, the The university Presidents’ Council of British Province of British Columbia has provided grant Columbia (TuPC); funding to particular research projects that may also be co-funded by other governments and/or industry. Diana Lucas, BC Ministry of advanced Education and Ministry of Education; • Both parties agree that the diversity and substance of legal instruments used to implement research Spencer Payne, BC Ministry of Children and initiatives are unsatisfactory. For a number of rea- Family Development; sons, these instruments do not appropriately reflect • Brenda Rafter, BC Ministry of Health; the nature of the collaborative relationship between • Dave Collisson, Deputy Chief Procurement the parties, the particular operating environment of • Officer, Office of the Comptroller General; universities or the range of possible research work Tamsin Miley, Research Services Manager, to date has been stalled agreements, repeated or that can be undertaken. The impact for both parties university of northern British Columbia protracted revision/approval cycles and use of poor (until March 2007); • fit “boilerplate” agreements. angus Livingstone, university-Industry Liaison Office, The university of British Columbia; and RESEARCH RELATIONSHIPS 8 FINAL REPORT APPENDICES In their research efforts, universities and the concerns, issues and interests of the Province of British Columbia share the same other party; vision, however a great deal of business diversity 4. exists within these two cultures in terms of policies, Issues: using a collaborative approach, the approvals and data and intellectual property Working Group will identify the range of pos- ownership requirements. There may be a latent sible provincial government-university research lack of common understanding or accommodation relationships and identify and describe the key of natural differences between the parties on an issues that can hamper the relationships or the administrative level. efficient formation of written agreements; as a result, representatives from TuPC, two 5. universities and the Province of British Columbia for these research relationships. This could more appropriate legal instruments for use in draft- include: development of a toolkit, a deci- ing research arrangements. The desired outcome sion guide (“menu” of scenarios and contract will see reduced time and effort required to secure language to handle key issues), educational agreements and a greater understanding of the primers on various topics or other suggested framework of provincial government-university approaches that can minimize or avoid un- research agreements. necessary challenges in entering into provincial government-university research agreements; APPROACh AND DELIVERABLES 6. Establish Membership: a Working Group recommendations from key stakeholders. TuPC, the Province of British Columbia and the universities; For the Province of British Columbia, these Determine Terms of Reference: The Terms of the Ministry of advanced Education Executive, stakeholders include the Procurement Council, Reference will be developed and approved by Ministry of Finance Risk Management Branch the Working Group. The group will also deter- (with respect to indemnity issues) and Minis- mine an approval or decision-making process try of attorney General Legal Services Branch at its first meeting, for its output deliverables (with respect to contract language) and the and recommendations; 3. Communication and Consultation: The group will seek support and/or approval for its will be established with representatives from 2. Recommend Solutions: The group will develop and recommend improved approaches used have agreed to come together and recommend 1. Establish Types of Relationships and key Intellectual Property Program. For TuPC, key Clarify Needs and Principles: The Working stakeholders include university-Industry Group will meet and develop a set of Liaison Offices at member institutions and principles to govern provincial government- the Vice-Presidents Research Committee. university research relationships. The purpose The group may also consult with other public of the principles is to ensure that the Province post-secondary institutions. The Working Group of British Columbia and universities start from will also identify opportunities for provincial a common basis of understanding for the government and university research managers RESEARCH RELATIONSHIPS FINAL REPORT 415 416 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS to build relationships and communicate on an 7. • Waiver of Moral Rights: an approach to ongoing basis regarding common matters of moral rights appropriate to the role of concern; and university faculty and the research relationship in question; Implementation and Accountability: The group will develop an implementation plan • Indemnity: an indemnity clause that reflect for the recommended solutions including the status of British Columbia’s universities as recommended timelines and the identification government corporations under the provincial of any “quick wins”. The implementation plan Financial Administration Act (Faa). according will incorporate accountability and review to the Faa Guarantees and Indemnities mechanisms so that progress can be assessed Regulation ministries and government against stated goals and solutions and plans corporations may only give an indemnity with may be adjusted as necessary. the prior written approval of the Minister of Finance, or her representative, the Director ISSUES of the Risk Management Branch. Therefore, The new approach will address a number of issues the standard provincial indemnity provision identified by both parties, such as (but not limited to): is incongruous to provincial government- • university research agreements and either Intellectual Property: Policies that respect the needs to be revised or made subject to the ownership and intellectual property interests of limitations of the Faa and its regulations; both parties and are appropriate to the type of research being undertaken. This includes • • • Good and Services Tax (GST): Clear policies formal types of intellectual property such as for the payment of GST. universities receive patents, copyright, and trademarks as well as 67% rebate for GST paid on purchases. The information, results and data; provincial government of British Columbia is Parties: appropriate legal entities that can sign immune from paying GST, and its private university-provincial government research sector contractors can seek reimbursement agreements. The University Act empowers a from CRa for GST paid in fulfilling their public university to enter into agreements in provincial contract. Can this be reconciled its name, but not in the name of a faculty or so universities can seek CRa reimbursement individual researcher. This distinction is a criti- or so that the Province of British Columbia cal one since identifying the legal party at the can reimburse that amount by which the university level also defines the appropriate and universities cannot recover (e.g. 33%), as meaningful thresholds for conflict of interest, an eligible contract budget expense, with the intellectual property and moral rights; necessary evidence to support reimbursement?; • Conflict of Interest: Conflict of interest poli- Confidentiality: Clear policies on who owns cies that are appropriate to universities and that and controls the use of confidential informa- protect the interests of the Province of British tion used during, and produced as a result of, Columbia; research activities, subject to the provisions for RESEARCH RELATIONSHIPS 10 FINAL REPORT APPENDICES the protection of privacy or confidentiality of data as outlined in British Columbia’s Freedom of Information and Protection of Privacy Act; • Publication: Clear policies setting out when university students and faculty are permitted to publish the results of the research both in academic journals and in student thesis; and • Overhead / Indirect Costs: Policies that clearly outline the circumstances in which overhead charges would apply and ideally, at what rate. RESOURCES TuPC offers administrative support; the Province of British Columbia offers meeting facilities and administrative support as back-up to TuPC. REfERENCE MATERIALS • The Lambert Model Agreements, endorsed by the government and key university and business stakeholders in the united Kingdom: http://www.innovation.gov.uk/lambertagreements/ • Task Force on university-Industry Sponsored Research arrangements. Final Report. university of British Columbia, university-Industry Liaison Office. 2006. RESEARCH RELATIONSHIPS FINAL REPORT 417 418 MISFIRE: THE 20l2 MINISTRY OF HEALTH EMPLUYMENT TERMINATIUNS AND RELATED MATTERS APPENDICES Research Relationships Between the Province of British Columbia and British Columbia’s Universities Tool Kit VERSION 1.3 SEPTEMBER 2010 www.researchrelationships.bc.ca November 2007 419 420 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS This toolkit forms an integral part of the Research Relationships Between the Province of British Columbia and Universities: Final Report (January 2008). The toolkit consists of a set of sample agreements and reference documents that should help you to use and understand research agreements with universities. The toolkit was prepared by the Province-University Research Agreements Working Group. The objectives of the toolkit are to: • facilitate negotiations between the Province’s ministries and its public universities; • reduce the time and effort required to secure an agreement; and • provide educational material and examples of best practice. This document and its associated resources address those situations where the Province of British Columbia enters into an agreement directly with a university (or universities) to have research conducted in an area directly related to government priorities, policies or individual Ministry mandates. More specifically, • Research services, investigation, testing, analysis and evaluation to > Increase generalized knowledge or understanding, or > recommend advice or solutions for a particular subject matter/issue for overall benefit to the Province of BC; or • A defined research project with specific objectives and deliverables that is for the direct benefit or implementation in ministry programs or operations. These documents and tool do not address: • Research funding provided by independent research funding agencies such as the Michael Smith Foundation for Health Research, Genome BC; • The Forest Investment Account and the British Columbia Knowledge Development Fund; • Staffing, secondments or hiring of co-op students; • Purchase of finished research papers, reports, or products; • Websites or training delivery programs; • Personal consulting arrangements between individual faculty members and the Province, and; • Educational Services contracts (e.g., for the development of curriculum). Feedback regarding the Tool Kit may be directed to the contact below. Diana Lucas Ministry of Education Finance & Administrative Services Branch PO Box 9178 Stn Prov Govt Victoria BC V8W 9H8 (250) 356–2556 Diana.Lucas@gov.bc.ca APPENDICES Table of Contents Sample Agreements Sample Grant Letter 1 Sample Sponsored Research Agreement 2 General Service Agreement 13 Reference Table 29 Reference Documents Reference Document 1 Core Policy Manual Chapter 4.3.14—Transfer Payments 34 Reference Document 2 Core Policy Manual Chapter 6—Procurement 36 Reference Document 3 Fact Sheet on Personal Consulting Activities of Academics 37 Reference Document 4 Sample Schedule B for Service Contracts 38 Reference Document 5 Government Policy on Advance Payments 40 Reference Document 6 Procurement Guidelines on Reimbursable HST 41 Reference Document 7 Fact Sheet on Produced Materials and Intellectual Property 42 Reference Document 8 Sample Employee/Researcher Confidentiality Agreement 44 Reference Document 9 Glossary 45 Reference Document 10 Record of changes to the Tool Kit 49 VERSION 1.3 SEPTEMBER 2010 421 422 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS Sample Agreements Version 1.3 September 2010 Sample Grant Letter [Ministry Letterhead] Date Recipient/Dept. University Name and Address Dear Recipient Name: We are pleased to inform you that , with you as principal investigator, has been awarded the sum of $_______ for the (the “Project”), as outlined in your proposal dated . As a condition of assistance, please provide a copy of the research report generated by the Project upon completion. In addition, please acknowledge the Ministry’s assistance on all written materials relating to the Project, by using the following acknowledgment: “We gratefully acknowledge the financial support of the Province of British Columbia through the Ministry of < >.” We trust that you will use your best efforts to ensure a successful outcome as a result of this undertaking. Yours truly, Deputy Minister RESEARCH RELATIONSHIPS 1 TOOL KIT APPENDICES Sample Agreements Version 1.3 September 2010 Sample Sponsored Research Agreement Contract # Province of British Columbia Ministry of _________________________ Transfer Under Agreement for Research at a B.C. Public University THIS AGREEMENT dated for reference the ___ day of _________________ , 201___ BETWEEN: HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA, represented by the Minister of ______________________ (the “Province”) OF THE FIRST PART AND: (the “University”) OF THE SECOND PART The parties to this Agreement agree as follows: SECTION 1—DEFINITIONS 1.01 Where used in this Agreement: (a) “Commercial” means being able to yield or make a profit, prepared, done, or acting with sole or chief emphasis on saleability, profit, or success; (b) “Financial Contribution” means the total aggregate funding value stipulated in Schedule B; (c) “Intellectual Property” means intangible (non-physical) property which includes scientific or scholarly discoveries, copyright, computer software, moral rights related to copyrighted materials, trademarks, official marks, domain names, patents, industrial designs, literary, artistic, musical or visual works and know-how; (d) “Material” means all findings, data, reports, documents, records and material, (both printed and electronic, including but not limited to, on hard disk or diskettes), whether complete or otherwise, that have been produced, received, compiled or acquired by the University, or provided by or on behalf of the Province to, the University as a direct result of this Agreement, but does not include property owned by the University; RESEARCH RELATIONSHIPS 2 TOOL KIT 423 424 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS (e) “Non-Commercial” means not being able to profit financially at any time from the Material under this Agreement between the Province and University, in the use of the Material by the following non-commercial users and their employees: government ministries, agencies, boards and commissions; educational institutions (such as public school boards, public post-secondary institutions, community and technical institutes); and non-profit organizations (such as public libraries, charities, and other organizations created for the promotion of educational, health or social services purposes); (f) means recorded information, not including business contact information, about an identifiable individual; “Personal Information” (g) “Principal Investigator” means the individual identified by the University as the person primarily responsible for the Research Project; (h) “Rebate” means a rebate on Federal Harmonized Sales Tax applicable to the University; (i) “Research Project” means the research project described in Schedule A; and (j) “Term” means the period commencing on the start date and expiring on the end date of the Agreement stipulated in the Schedule A. SECTION 2—APPOINTMENT 2.01 The Province retains the University to conduct the Research Project during the Term, both described in Schedule “A”. SECTION 3—PAYMENT OF A FINANCIAL CONTRIBUTION 3.01 Subject to the provisions of this Agreement, the Province will pay the University, in the amount and manner, and at the times set out in Schedule “B” attached to this Agreement. 3.02 Notwithstanding any other provision of this Agreement the payment of the Financial Contribution by the Province to the University pursuant to this Agreement is subject to: (a) there being sufficient monies available in an appropriation, as defined in the Financial Administration Act (“FAA”), to enable the Province, in any fiscal year when any payment of money by the Province to the University falls due pursuant to this Agreement, to make that payment; and (b) Treasury Board, as defined in the FAA, not having controlled or limited, pursuant to the FAA, expenditure under any appropriation referred to in subparagraph (a) of this paragraph. 3.03 The University is entitled to a Rebate from the Federal Government and may, therefore, charge to the Province only the non-refundable portion of Harmonized Sales Tax, as applicable to the Research Project, and as provided for within the Financial Contribution. SECTION 4—REPRESENTATIONS AND WARRANTIES 4.01 Subject to paragraph 4.04 (Disclaimer), the University represents and warrants to the Province with the intent that the Province will rely thereon in entering into this Agreement that: (a) all information, statements, documents and reports furnished or submitted by it to the Province in connection with this Agreement are true and correct; RESEARCH RELATIONSHIPS 3 TOOL KIT APPENDICES (b) it has no knowledge of any fact that materially adversely affects, or so far as it can foresee, might materially adversely affect, its properties, assets, condition (financial or otherwise), business or operations or its ability to fulfill its obligations under this Agreement; and (c) it is not in breach of, or in default under, any law, statute or regulation of Canada or of the Province of British Columbia applicable to or binding on it or its operations. 4.02 All statements contained in any certificate, application, proposal or other document delivered by or on behalf of the University to the Province under this Agreement or in connection with any of the transactions contemplated hereby will be deemed to be representations and warranties by the University under this Agreement. 4.03 All representations, warranties, covenants and agreements made herein and all certificates, applications or other documents delivered by or on behalf of the University are material and will have been relied upon by the Province and will continue in full force and effect during the continuation of this Agreement. 4.04 Disclaimer. The University makes no representations or warranties, either express or implied, regarding data or other results arising from the Research Project. The University specifically disclaims any implied warranty of non-infringement or merchantability or fitness for a particular purpose and the University will, in no event, be liable for any loss of profits, be they direct, consequential, incidental, or special or other similar damages arising from any defect, error or failure to perform, even if the University has been advised of the possibility of such damages. The Province acknowledges that the Research Project is of an experimental and exploratory nature, that no particular results can be guaranteed, and that the Province has been advised by the University to undertake its own due diligence with respect to all matters arising from this Agreement. SECTION 5—RELATIONSHIP 5.01 No partnership, joint venture, agency or other legal entity will be created by or will be deemed to be created by this Agreement or any actions of the parties pursuant to this Agreement. 5.02 Each party will be an independent contractor and not the servant, employee or agent of the other party. 5.03 The University will not in any manner whatsoever commit or purport to commit the Province to the payment of money to any person, firm or corporation. 5.04 The Province may, from time to time, give reasonable instructions to the University in relation to the carrying out of the Research Project, and the University will comply with those instructions but will not be subject to the control of the Province regarding the manner in which those instructions are carried out except as specified in this Agreement. Notwithstanding the foregoing, all changes to the scope and direction of the Agreement will be made with mutual agreement between the parties. SECTION 6—UNIVERSITY’S OBLIGATIONS 6.01 The University will: (a) carry out the Research Project in accordance with the terms of this Agreement during the Term stated in Schedule “A” of this Agreement; (b) comply with the payment requirements set out in Schedule “B”, including all requirements concerning the use, application and expenditure of the payments provided under this Agreement; (c) comply with all applicable laws; (d) hire and retain only qualified staff; RESEARCH RELATIONSHIPS 4 TOOL KIT 425 426 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS Drafter to choose one of the following options: Option 1 (e) unless agreed otherwise supply, at its own cost, all labour, materials and approvals necessary to carry out the Research Project; (f) co-operate with the Province in making such public announcements regarding the Research Project and the details of this Agreement as the Province requests; and (g) acknowledge the Financial Contribution made by the Province to the University for the Research Project in any Materials, by printing on each of the Materials the following statement: “We gratefully acknowledge the financial support of the Province of British Columbia through the Ministry of _______________________.” Option 2 (e) unless agreed otherwise supply, at its own cost, all labour, materials and approvals necessary to carry out the Research Project; and (f) subject to obtaining the prior written approval of the Province concerning form, content and location, the University may post signs acknowledging the Province’s participation in the Research Project. SECTION 7—RECORDS 7.01 The University will: (a) establish and maintain accounting and administrative records to be used as the basis for the calculation of the Financial Contribution; (b) establish and maintain books of account, invoices, receipts and vouchers for all expenses incurred; and (c) permit the Province, for contract monitoring and audit purposes, at all reasonable times, upon reasonable notice, to enter any premises used by the University to conduct the Research Project or keep any documents or records pertaining to the Research Project, in order for the Province to inspect, audit, examine, review and copy any findings, data, specifications, drawings, working papers, reports, surveys, spread sheets, evaluations, documents, databases and other Material, (both printed and electronic, including, but not limited to, on hard disk or diskettes), whether complete or not, that are produced, received or otherwise acquired by the University as a result of this Agreement. 7.02 The parties agree that the Province does not have control, for the purpose of the Freedom of Information and Protection of Privacy Act, of the records held by the University. SECTION 8—STATEMENTS AND ACCOUNTING 8.01 Within 3 months of being requested to do so by the Province in writing, the University will provide to the Province a financial statement documenting the expenditure of the Financial Contribution under this Agreement. 8.02 At the sole option of the Province, any portion of the Financial Contribution provided to the University under this Agreement and not expended at the end of the Agreement shall be: Drafter to choose one of the following options: RESEARCH RELATIONSHIPS 5 TOOL KIT APPENDICES Option 1 returned by the University to the Minister of Finance as requested by the Province. Option 2 retained by the University for supplemental research activities related to the Research Project. Option 3 deducted by the Province from any future funding requests submitted by the University on behalf of the same Principal Investigator involved in performing the Research Project within [a defined time period] and approved by the Province. Option 4 used to conduct additional research at the discretion of the University. SECTION 9—CONFLICT OF INTEREST 9.01 The University must not knowingly allow its research personnel involved in performing the Research Project, to provide any services to any person in circumstances that could give rise to a conflict of interest between their duties to that person and their duties to the Province under this Agreement. SECTION 10—CONFIDENTIALITY 10.01 The University will treat as confidential all information or material which are clearly marked as confidential or proprietary when first disclosed (“Confidential Information”) by the Province and supplied to or obtained by the University, or any subcontractor, under this Agreement and will not, without the prior written consent of the Province, except as required by applicable law, permit its disclosure except to the extent that such disclosure is necessary to enable the University to fulfill its obligations under this Agreement. Confidential Information may also include information furnished during discussions or oral presentations if it is conspicuously identified as proprietary at the time and then transcribed or confirmed in writing within thirty (30) days, specifically describing what portions of such information is considered to be proprietary or confidential. However, the University is under no obligation to maintain the confidentiality of Confidential Information which the University can show: (a) is or subsequently becomes generally available to the public through no act or fault of the University; (b) was in the possession of the University prior to its disclosure by the Province to the University; (c) was lawfully acquired by the University from a third party who was not under an obligation of confidentiality to the Province; (d) is required by an order of a legal process to disclose, provided that the University gives the Province prompt and reasonable notification of such requirement prior to disclosure; or (e) was independently developed by employees, agents or consultants of the University who had no knowledge of or access to the Province’s information as evidenced by the University’s records. 10.02 The University will ensure that the Principal Investigator of the Research Project acknowledges the confidentiality provisions in this Agreement and it is the responsibility of the Principal Investigators to ensure that all other employees engaged in the Research Project are aware of the confidentiality provisions in this Agreement. RESEARCH RELATIONSHIPS 6 TOOL KIT 427 428 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS SECTION 11—DEFAULT 11.01 Any of the following events will constitute an Event of Default, namely: (a) the University fails to comply with any material provision of this Agreement; (b) subject to paragraph 4.04, any representation or warranty made by the University in accepting this Agreement is untrue or incorrect; or (c) any information, statement, certificate, report or other document furnished or submitted by or on behalf of the University pursuant to or as a result of this Agreement is untrue or incorrect. SECTION 12—TERMINATION 12.01 Either party may terminate this Agreement for any reason by giving at least thirty (30) days prior written notice to the other. 12.02 Upon the occurrence of any Event of Default and at any time thereafter the Province may, notwithstanding any other provision of this Agreement, at its option, elect to do any one or more of the following: (a) terminate this Agreement, in which case the payment of the amount required under paragraph 12.04 of this Agreement will discharge the Province of all liability to the University under this Agreement; (b) require the Event of Default be remedied within a time period specified by the Province; (c) suspend any instalment of the Financial Contribution or any amount that is due to the University while the Event of Default continues; (d) waive the Event of Default; and (e) pursue any other remedy available at law or in equity. 12.03 The Province may also, at its option, terminate this Agreement immediately if the Province determines that the University’s failure to comply places the health or safety of any person conducting the Research Project at immediate risk, and the payment of the amount required under paragraph 12.04 of this Agreement will discharge the Province of all liability to the University under this Agreement. 12.04 Where this Agreement is terminated before 100% completion of the Research Project, the Province will pay to the University all costs and liabilities, including uncancellable commitments, relating to the Research Project up to but no more than the Financial Contribution which have been incurred by the University as of the date of receipt of notice of termination or the date of termination, whichever is later. SECTION 13—DISPUTE RESOLUTION Drafter to choose one of the following options: Option 1 13.01 In the event of a controversy or dispute between the parties arising out of or in connection with this Agreement, or regarding its interpretation or operation, the parties will use reasonable efforts to resolve the dispute amicably but if the parties, acting reasonably, are unable to resolve their dispute within thirty (30) days after the beginning of the consultation process, then: (a) either party may serve written notice on the other party requiring that they submit the dispute to non-binding mediation; RESEARCH RELATIONSHIPS 7 TOOL KIT APPENDICES (b) the parties will select a single mediator to mediate the dispute in accordance with the Commercial Arbitration Act of British Columbia; (c) the language of the mediation proceeding will be English and the place of mediation will be Vancouver, British Columbia; (d) the parties will use reasonable efforts to participate in the mediation process and to resolve their dispute; (e) each party will pay its own costs and an equal share of all other costs of the mediation; and (f) should no amicable settlement be reached by the parties within sixty (60) days from the commencement of the mediation, either party may initiate judicial proceedings to resolve the dispute. Option 2 13.01 All disputes arising out of or in connection with this Agreement or in respect of any defined legal relationship associated with it or derived from it must, unless the parties otherwise agree, be referred to and finally resolved by arbitration under the Commercial Arbitration Act. SECTION 14—INDEMNITY 14.01 The Province will indemnify and save harmless the University, its Board of Governors, directors, officers, employees, faculty, students and agents from and against any and all losses, claims, damages, actions, causes of action, costs and expenses that the University, its Board of Governors, directors, officers, employees, students and agents may sustain, incur, suffer or put to at any time either before or after the expiration or termination of this Agreement, where the same or any of them are based upon, arise out of or occur, directly or indirectly, by reason of any act or omission of the Province, or of any agent, employee, officer or director of the Province pursuant to this Agreement. 14.02 The University will indemnify and save harmless the Province, its officers, directors, employees and agents from and against any and all losses, claims, damages, actions, causes of action, costs and expenses that the Province may sustain, incur, suffer, or be put to at any time, either before or after the expiration or termination of this Agreement, where the same are based upon, arise out of or occur, directly or indirectly, by reason of any act or omission of the University or its Board of Governors, directors, officers, employees, faculty, contractors, students or agents pursuant to this Agreement. SECTION 15—ASSIGNMENT AND SUBCONTRACTING 15.01 The University will not, without the prior, written consent of the Province: (a) assign, either directly or indirectly, this Agreement or any right of the University under this Agreement; or (b) subcontract any obligation of the University under this Agreement. 15.02 No subcontract entered into by the University will relieve the University from any of its obligations under this Agreement or impose upon the Province any obligation or liability arising from any such subcontract. 15.03 This Agreement will be binding upon the Province and its assigns and the University, the University’s successors and permitted assigns. SECTION 16—OWNERSHIP AND PUBLICATION OF RESULTS AND INTELLECTUAL PROPERTY 16.01 Any equipment, machinery, data or other property, provided by the Province to the University for the conduct of the Research Project under this Agreement will: RESEARCH RELATIONSHIPS 8 TOOL KIT 429 430 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS (a) be the exclusive property of the Province; and (b) forthwith be delivered by the University to the Province on written notice to the University requesting delivery of the same at the Province’s costs, whether such a notice is given before, upon, or after the expiration or sooner termination of this Agreement. 16.02 The University will retain title to any equipment purchased with funds provided by the Province under this Agreement and the Province acknowledges that the University’s insurance is applicable only to such equipment owned by the University. 16.03 The Province acknowledges and agrees that the University owns all right, title and interest in the Material produced under this Agreement and Intellectual Property arising from the Research Project under this Agreement. 16.04 The University hereby grants the Province a perpetual non-exclusive, irrevocable, world-wide, fully paid up and royalty-free license to use, make, copy, distribute, translate, practice, and reproduce the Material produced under this Agreement and Intellectual Property arising under this Agreement for scientific, educational, public good and other Non-Commercial uses. In addition, the University grants the Province the additional rights to incorporate all or portions of the Material produced under this Agreement in any reports created by the Province and to further develop the Research Project reports provided that the content of the Research Project reports is not materially modified without the written approval of the University. Upon the Province’s request, the University will deliver documents satisfactory to the Province that waive in the Province’s favour any moral rights to Research Project reports, as defined in “Schedule A”, which the University’s employees or contractors may have in said Research Project reports. 16.05 The University and its employees will not be restricted from presenting publications at symposia, national or regional professional meetings, or from publishing in journals or other publications, accounts of the work pertaining to this Agreement. Publications, conference presentations, symposia and all other dissemination of material pertaining to the work of this Agreement will recognize the Ministry of ____________________. SECTION 17—OTHER FUNDING 17.01 The University will ensure that if the University’s research personnel, involved in performing the Research Project, receives funding for or in respect of the Research Project from any person, firm, corporation or other government or government body, then the University will immediately provide the Province with details thereof. SECTION 18—NOTICES 18.01 Any written communication from the University to the Province must be mailed, personally delivered, faxed, or electronically transmitted to the following address: (Specify mailing address, fax number and/or other electronic means for the Province, and name and title of contract manager.) 18.02 Any written communication from the Province to the University must be mailed, personally delivered, faxed or electronically transmitted to the following address: (Specify name and mailing address including fax number and/or other electronic means for the University, and name and title of contact.) 18.03 Any written communication from either party will be deemed to have been received by the other party on the fifth business day after mailing in British Columbia; on the date of personal delivery if personally delivered or on the date of transmission if faxed (or sent by email if applicable). RESEARCH RELATIONSHIPS 9 TOOL KIT APPENDICES 18.04 Either party may, from time to time, notify the other party in writing of a change of address and, following the receipt of such notice, the new address will, for the purposes of paragraph 18.01 or 18.02 of this Agreement, be deemed to be the mailing address of the party giving notice. SECTION 19—NON‑WAIVER 19.01 No term or condition of this Agreement and no breach by the University of any such term or condition will be deemed to have been waived unless such waiver is in writing signed by the Province and the University. 19.02 The written waiver by the Province or any breach by the University of any term or condition of this Agreement will not be deemed to be a waiver of any other provision of any subsequent breach of the same or any other provision of this Agreement. SECTION 20—ENTIRE AGREEMENT 20.01 This Agreement including the Schedules constitutes the entire agreement between the parties with respect to the subject matter of this Agreement. SECTION 21—SURVIVAL OF PROVISIONS 21.01 All of the provisions of this Agreement in favour of the Province including, without limitation, paragraphs 3.02, 4.04, 7.01, 7.02, 8.02, 10.01, 12.04, 13.01, 14.01, 14.02, 16.01, 16.02, 16.03, 16.04, and all of the rights and remedies of the parties, either at law or in equity, will survive any expiration or sooner termination of this Agreement. SECTION 22—MISCELLANEOUS 22.01 This Agreement will be governed by and construed in accordance with the laws of the Province of British Columbia. 22.02 The Schedules to this Agreement are an integral part of this Agreement as if set out at length in the body of this Agreement. 22.03 No amendment or modification to this Agreement will be effective unless it is in writing and duly executed by the parties. 22.04 If any provision of this Agreement or the application to any person or circumstance is invalid or unenforceable to any extent, the remainder of this Agreement and the application of such provision to any other person or circumstance will not be affected or impaired thereby and will be enforceable to the extent permitted by law. 22.05 Nothing in this Agreement operates as a consent, permit, approval or authorization by the Government of the Province of British Columbia or any Ministry or Branch thereof to or for anything related to the Research Project that by statute, the University is required to obtain unless it is expressly stated herein to be such a consent, permit, approval or authorization. 22.06 This Agreement may be executed by the parties in separate counterparts each of which when so executed and delivered shall be an original, and all such counterparts may be delivered by facsimile transmission and such transmission shall be considered an original. 22.07 Time is of the essence of this Agreement. 22.08 For the purpose of paragraphs 22.09 and 22.10, an “Event of Force Majeure” includes, but is not limited to, acts of God, changes in the laws of Canada, governmental restrictions or control on imports, exports or for- RESEARCH RELATIONSHIPS 10 TOOL KIT 431 432 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS eign exchange, wars (declared or undeclared), fires, floods, storms, strikes (including illegal work stoppages or slowdowns), lockouts, labour shortages, freight embargoes and power failures or other cause beyond the reasonable control of a party, provided always that lack of money, financing or credit will not be and will not be deemed to be an “Event of Force Majeure”. 22.09 Neither party will be liable to the other for any delay, interruption or failure in the performance of their respective obligations if caused by an Event of Force Majeure, in which case the time period for the performance or completion of any such obligation will be automatically extended for the duration of the Event of Force Majeure. 22.10 If an Event of Force Majeure occurs or is likely to occur, then the party directly affected will notify the other party forthwith, and will use its reasonable efforts to remove, curtail or contain the cause of the delay, interruption or failure and to resume with the least possible delay compliance with its obligations under this Agreement. The parties hereto have executed this Agreement the day and year as set out above. SIGNED AND DELIVERED by the University or an Authorized Representative of the University _____________________________________________ Print Name of University Authorized Representative) _____________________________________________ (Signature) RESEARCH RELATIONSHIPS ) ) ) ) ) ) ) ) ) ) ) ) ) ) SIGNED AND DELIVERED on behalf of the Province by an Authorized Representative of the Province ______________________________________________ Print Name of Authorized Representative) ______________________________________________ (Signature) 11 TOOL KIT APPENDICES SCHEDULE A—RESEARCH PROJECT AND TERM 1. Notwithstanding the date of execution of this Agreement, the term of this Agreement will start on ___________ and end on ____________. 2. [Research Project Details] SAMPLE SCHEDULE B—FINANCIAL CONTRIBUTION 1. The Province agrees to provide to the University the amount of $________ during the Term of the Agreement. 2. Payments will be made as follows: [The payment schedule is often linked to project reporting, deliverables or milestones.] (a) an initial payment of $_____[small percentage of total contribution, to help with start up costs, if applicable]______ within [30 or 60] days of the start date of this Agreement; (b) upon receipt by the Province of [specify a particular phase, service, result, deliverable or status report], a payment amount of $_________; (c) upon receipt by the Province of [specify a particular phase, service, result, deliverable or status report], a payment amount of $__________; and (d) on completion of the Research Project and upon receipt by the Province of the final [specify by name— a deliverable(s) or written report(s)], a final payment not to exceed $_________. 3. The University will submit to the Province , a written statement of account showing: (a) the University’s legal name and address; (b) the date of the statement and a statement number for identification; (c) the calculation of the Financial Contribution being claimed, with reasonable detail of the applicable part of the Research Project completed to statement date; and (d) any other billing information reasonably requested by the Province. RESEARCH RELATIONSHIPS 12 TOOL KIT 433 434 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS Sample Agreements Version 1.3 September 2010 General Service Agreement Also available at, including optional schedules: http://www.pss.gov.bc.ca/psb/gsa/gsa_index.html For Administrative Purposes Only Ministry Contract No.: ___________________________ Requisition No.: ________________________________ Solicitation No. (if applicable): ___________________ Commodity Code: ______________________________ Contractor Information Supplier Name: _________________________________ Supplier No.: ___________________________________ Telephone No.: _________________________________ E-mail Address: _________________________________ Website: _______________________________________ Financial Information Client: _________________________________________ Responsibility Centre: ____________________________ Service Line:____________________________________ STOB: _________________________________________ Project: ________________________________________ RESEARCH RELATIONSHIPS 13 TOOL KIT 435 APPENDICES TABLE OF CONTENTS No. Heading 1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1.1 General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1.2 Meaning of ”record” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2. Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 2.1 Provision of services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 2.2 Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 2.3 Supply of various items . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 2.4 Standard of care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 2.5 Standards in relation to persons performing Services . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 2.6 Instructions by Province . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 2.7 Confirmation of non-written instructions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 2.8 Effectiveness of non-written instructions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 2.9 Applicable laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 3. Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 3.1 Fees and expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 3.2 Statements of accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 3.3 Withholding of amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 3.4 Appropriation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 3.5 Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 3.6 Non-resident income tax . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 3.7 Prohibition against committing money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 3.8 Refunds of taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 4. Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 5. Privacy, Security and Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 5.1 Privacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 5.2 Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 5.3 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 5.4 Public announcements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 5.5 Restrictions on promotion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 6. Material and Intellectual Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 6.1 Access to Material . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 6.2 Ownership and delivery of Material . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 6.3 Matters respecting intellectual property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 6.4 Rights relating to Incorporated Material . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 7. Records and Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 7.1 Work reporting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 7.2 Time and expense records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 8. Audit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 RESEARCH RELATIONSHIPS Page 14 TOOL KIT 436 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS 9. Indemnity and Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 9.1 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 9.2 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 9.3 Workers compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 9.4 Personal optional protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 9.5 Evidence of coverage. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 10. Force Majeure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 10.1 Definitions relating to force majeure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 10.2 Consequence of Event of Force Majeure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 10.3 Duties of Affected Party . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 11. Default and Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 11.1 Definitions relating to default and termination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 11.2 Province’s options on default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 11.3 Delay not a waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 11.4 Province’s right to terminate other than for default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 11.5 Payment consequences of termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 11.6 Discharge of liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 11.7 Notice in relation to Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 12. Dispute Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 12.1 Dispute resolution process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 12.2 Location of arbitration or mediation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 12.3 Costs of mediation or arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 13. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 13.1 Delivery of notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 13.2 Change of address or fax number . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 13.3 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 13.4 Subcontracting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 13.5 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 13.6 Modifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 13.7 Entire agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 13.8 Survival of certain provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 13.9 Schedules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 13.10 Independent contractor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 13.11 Personnel not to be employees of Province . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 13.12 Key Personnel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 13.13 Pertinent Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 13.14 Conflict of interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 13.15 Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 13.16 Conflicts among provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 13.17 Agreement not permit nor fetter. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 13.18 Remainder not affected by invalidity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 13.19 Further assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 13.20 Additional terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 13.21 Governing law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 14. Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 15. Execution and Delivery of Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 RESEARCH RELATIONSHIPS 15 TOOL KIT APPENDICES SCHEDULE A–SERVICES Part 1–Term Part 2– Services Part 3–Related Documentation Part 4–Key Personnel SCHEDULE B–FEES AND EXPENSES Part 1–Maximum Amount Payable Part 2–Fees Part 3–Expenses Part 4–Statements of Account Part 5–Payments Due Part 6–Goods and Services Tax SCHEDULE C–APPROVED SUBCONTRACTOR(S) SCHEDULE D–INSURANCE SCHEDULE E–PRIVACY PROTECTION SCHEDULE SCHEDULE F–ADDITIONAL TERMS SCHEDULE G–SECURITY SCHEDULE RESEARCH RELATIONSHIPS 16 TOOL KIT 437 438 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS THIS AGREEMENT is dated for reference the ___day of ____________, 20__. BETWEEN: @LEGAL NAME AND, IF APPLICABLE, DESCRIPTION, OF CONTRACTOR (the “Contractor”) with the following specified address and fax number: @ADDRESS @POSTAL CODE @FAX NUMBER AND: HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA, as represented by _________________________ (the “Province”) with the following specified address and fax number: @ADDRESS @POSTAL CODE @FAX NUMBER The Province wishes to retain the Contractor to provide the services specified in Schedule A and, in consideration for the remuneration set out in Schedule B, the Contractor has agreed to provide those services, on the terms and conditions set out in this Agreement. As a result, the Province and the Contractor agree as follows: 1 by the Contractor or a Subcontractor from the Province or any other person; (f) “Services” means the services described in Part 2 of Schedule A; (g) “Subcontractor” means a person described in paragraph (a) or (b) of section 13.4; and (h) “Term” means the term of the Agreement described in Part 1 of Schedule A subject to that term ending earlier in accordance with this Agreement. DEFINITIONS General 1.1 In this Agreement, unless the context otherwise requires: (a) “Business Day” means a day, other than a Saturday or Sunday, on which Provincial government offices are open for normal business in British Columbia; (b) “Incorporated Material” means any material in existence prior to the start of the Term or developed independently of this Agreement, and that is incorporated or embedded in the Produced Material by the Contractor or a Subcontractor; (c) “Material” means the Produced Material and the Received Material; (d) “Produced Material” means records, software and other material, whether complete or not, that, as a result of this Agreement, are produced by the Contractor or a Subcontractor and includes the Incorporated Material; (e) “Received Material” means records, software and other material, whether complete or not, that, as a result of this Agreement, are received RESEARCH RELATIONSHIPS Meaning of “record” 1.2 The definition of “record” in the Interpretation Act is incorporated into this Agreement and “records” will bear a corresponding meaning. 2 SERVICES Provision of services 2.1 The Contractor must provide the Services in accordance with this Agreement. Term 2.2 17 Regardless of the date of execution or delivery of this Agreement, the Contractor must provide the Services during the Term. TOOL KIT APPENDICES Supply of various items 3 2.3 Fees and expenses Unless the parties otherwise agree in writing, the Contractor must supply and pay for all labour, materials, equipment, tools, facilities, approvals and licenses necessary or advisable to perform the Contractor’s obligations under this Agreement, including the license under section 6.4. 3.1 Standard of care 2.4 Unless otherwise specified in this Agreement, the Contractor must perform the Services to a standard of care, skill and diligence maintained by persons providing, on a commercial basis, services similar to the Services. Standards in relation to persons performing Services 2.5 The Contractor must ensure that all persons employed or retained to perform the Services are qualified and competent to perform them and are properly trained, instructed and supervised. 3.2 The Province may from time to time give the Contractor reasonable instructions (in writing or otherwise) as to the performance of the Services. The Contractor must comply with those instructions but, unless otherwise specified in this Agreement, the Contractor may determine the manner in which the instructions are carried out. 3.3 If the Province provides an instruction under section 2.6 other than in writing, the Contractor may request that the instruction be confirmed by the Province in writing, which request the Province must comply with as soon as it is reasonably practicable to do so. Effectiveness of non-written instructions 2.8 Requesting written confirmation of an instruction under section 2.7 does not relieve the Contractor from complying with the instruction at the time the instruction was given. 3.4 In the performance of the Contractor’s obligations under this Agreement, the Contractor must comply with all applicable laws. RESEARCH RELATIONSHIPS Without limiting section 9.1, the Province may withhold from any payment due to the Contractor an amount sufficient to indemnify, in whole or in part, the Province and its employees and agents against any liens or other third-party claims that have arisen or could arise in connection with the provision of the Services. An amount withheld under this section must be promptly paid by the Province to the Contractor upon the basis for withholding the amount having been fully resolved to the satisfaction of the Province. Appropriation Applicable laws 2.9 In order to obtain payment of any fees and expenses under this Agreement, the Contractor must submit to the Province a written statement of account in a form satisfactory to the Province upon completion of the Services or at other times described in Schedule B. Withholding of amounts Confirmation of non-written instructions 2.7 If the Contractor complies with this Agreement, then the Province must pay to the Contractor at the times and on the conditions set out in Schedule B: (a) the fees described in that Schedule; (b) the expenses, if any, described in that Schedule if they are supported, where applicable, by proper receipts and, in the Province’s opinion, are necessarily incurred by the Contractor in providing the Services; and (c) any applicable taxes payable by the Province under law or agreement with the relevant taxation authorities on the fees and expenses described in paragraphs (a) and (b). The Province is not obliged to pay to the Contractor more than the “Maximum Amount” specified in Schedule B on account of fees and expenses. Statements of accounts Instructions by Province 2.6 PAYMENT 18 The Province’s obligation to pay money to the Contractor is subject to the Financial Administration Act, which makes that obligation subject to an appropriation being available in the fiscal year of the Province during which payment becomes due. TOOL KIT 439 440 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS any competitive process resulting in this Agreement being entered into) are in all material respects true and correct, (ii) the Contractor has sufficient trained staff, facilities, materials, appropriate equipment and approved subcontractual agreements in place and available to enable the Contractor to fully perform the Services, and (iii) the Contractor holds all permits, licenses, approvals and statutory authorities issued by any government or government agency that are necessary for the performance of the Contractor’s obligations under this Agreement; and Currency 3.5 Unless otherwise specified in this Agreement, all references to money are to Canadian dollars. Non-resident income tax 3.6 If the Contractor is not a resident in Canada, the Contractor acknowledges that the Province may be required by law to withhold income tax from the fees described in Schedule B and then to remit that tax to the Receiver General of Canada on the Contractor’s behalf. Prohibition against committing money 3.7 (b) if the Contractor is not an individual, (i) the Contractor has the power and capacity to enter into this Agreement and to observe, perform and comply with the terms of this Agreement and all necessary corporate or other proceedings have been taken and done to authorize the execution and delivery of this Agreement by, or on behalf of, the Contractor, and (ii) this Agreement has been legally and properly executed by, or on behalf of, the Contractor and is legally binding upon and enforceable against the Contractor in accordance with its terms except as enforcement may be limited by bankruptcy, insolvency or other laws affecting the rights of creditors generally and except that equitable remedies may be granted only in the discretion of a court of competent jurisdiction. Without limiting section 13.10(a), the Contractor must not in relation to performing the Contractor’s obligations under this Agreement commit or purport to commit the Province to pay any money except as may be expressly provided for in this Agreement. Refunds of taxes 3.8 The Contractor must: (a) apply for, and use reasonable efforts to obtain, any available refund, credit, rebate or remission of federal, provincial or other tax or duty imposed on the Contractor as a result of this Agreement that the Province has paid or reimbursed to the Contractor or agreed to pay or reimburse to the Contractor under this Agreement; and 5 (b) immediately on receiving, or being credited with, any amount applied for under paragraph (a), remit that amount to the Province. 4 REPRESENTATIONS AND WARRANTIES 4.1 As at the date this Agreement is executed and delivered by, or on behalf of, the parties, the Contractor represents and warrants to the Province as follows: Privacy 5.1 The Contractor must comply with the Privacy Protection Schedule attached as Schedule E. Security 5.2 (a) except to the extent the Contractor has previously disclosed otherwise in writing to the Province, (i) all information, statements, documents and reports furnished or submitted by the Contractor to the Province in connection with this Agreement (including as part of RESEARCH RELATIONSHIPS PRIVACY, SECURITY AND CONFIDENTIALITY 19 The Contractor must: (a) make reasonable security arrangements to protect the Material from unauthorized access, collection, use, disclosure, alteration or disposal; and (b) comply with the Security Schedule attached as Schedule G. TOOL KIT APPENDICES Confidentiality Matters respecting intellectual property 5.3 6.3 The Contractor must treat as confidential all information in the Material and all other information accessed or obtained by the Contractor or a Subcontractor (whether verbally, electronically or otherwise) as a result of this Agreement, and not permit its disclosure or use without the Province’s prior written consent except: (a) as required to perform the Contractor’s obligations under this Agreement or to comply with applicable laws; (b) if it is information that is generally known to the public other than as result of a breach of this Agreement; or (c) if it is information in any Incorporated Material. Public announcements 5.4 Rights in relation to Incorporated Material Any public announcement relating to this Agreement will be arranged by the Province and, if such consultation is reasonably practicable, after consultation with the Contractor. 6.4 Upon any Incorporated Material being embedded or incorporated in the Produced Material and to the extent that it remains so embedded or incorporated, the Contractor grants to the Province: (a) a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to use, reproduce, modify and distribute that Incorporated Material; and (b) the right to sublicense to third-parties the right to use, reproduce, modify and distribute that Incorporated Material. 7 RECORDS AND REPORTS Restrictions on promotion 5.5 The Contractor must not, without the prior written approval of the Province, refer for promotional purposes to the Province being a customer of the Contractor or the Province having entered into this Agreement. 6 MATERIAL AND INTELLECTUAL PROPERTY The Province exclusively owns all intellectual property rights, including copyright, in: (a) Received Material that the Contractor receives from the Province; and (b) Produced Material, other than any Incorporated Material. Upon the Province’s request, the Contractor must deliver to the Province documents satisfactory to the Province that irrevocably waive in the Province’s favour any moral rights which the Contractor (or employees of the Contractor) or a Subcontractor (or employees of a Subcontractor) may have in the Produced Material and that confirm the vesting in the Province of the copyright in the Produced Material, other than any Incorporated Material. Access to Material Work reporting 6.1 7.1 If the Contractor receives a request for access to any of the Material from a person other than the Province, and this Agreement does not require or authorize the Contractor to provide that access, the Contractor must promptly advise the person to make the request to the Province. Time and expense records 7.2 Ownership and delivery of Material 6.2 The Province exclusively owns all property rights in the Material which are not intellectual property rights. The Contractor must deliver any Material to the Province immediately upon the Province’s request. RESEARCH RELATIONSHIPS Upon the Province’s request, the Contractor must fully inform the Province of all work done by the Contractor or a Subcontractor in connection with providing the Services. 20 If Schedule B provides for the Contractor to be paid fees at a daily or hourly rate or for the Contractor to be paid or reimbursed for expenses, the Contractor must maintain time records and books of account, invoices, receipts and vouchers of expenses in support of those payments, in form and content satisfactory to the Province. Unless otherwise specified in this Agreement, the Contractor must retain such documents for a period of not less than seven years after this Agreement ends. TOOL KIT 441 442 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS 8 AUDIT Personal optional protection 8.1 In addition to any other rights of inspection the Province may have under statute or otherwise, the Province may at any reasonable time and on reasonable notice to the Contractor, enter on the Contractor’s premises to inspect and, at the Province’s discretion, copy any of the Material and the Contractor must permit, and provide reasonable assistance to, the exercise by the Province of the Province’s rights under this section. 9.4 9 INDEMNITY AND INSURANCE Indemnity 9.1 Evidence of coverage The Contractor must indemnify and save harmless the Province and the Province’s employees and agents from any losses, claims, damages, actions, causes of action, costs and expenses that the Province or any of the Province’s employees or agents may sustain, incur, suffer or be put to at any time, either before or after this Agreement ends, including any claim of infringement of third-party intellectual property rights, where the same or any of them are based upon, arise out of or occur, directly or indirectly, by reason of any act or omission by the Contractor or by any of the Contractor’s agents, employees, officers, directors or Subcontractors in connection with this Agreement, excepting always liability arising out of the independent acts or omissions of the Province and the Province’s employees and agents. The Contractor must comply with the Insurance Schedule attached as Schedule D. Without limiting the generality of section 2.9, the Contractor must comply with, and must ensure that any Subcontractors comply with, all applicable occupational health and safety laws in relation to the performance of the Contractor’s obligations under this Agreement, including the Workers Compensation Act in British Columbia or similar laws in other jurisdictions. RESEARCH RELATIONSHIPS Within 10 Business Days of being requested to do so by the Province, the Contractor must provide the Province with evidence of the Contractor’s compliance with sections 9.3 and 9.4. 10 FORCE MAJEURE 10.1 In this section and sections 10.2 and 10.3: (a) “Event of Force Majeure” means one of the following events: (i) a natural disaster, fire, flood, storm, epidemic or power failure, (ii) a war (declared and undeclared), insurrection or act of terrorism or piracy, (iii) a strike (including illegal work stoppage or slowdown) or lockout, or (iv) a freight embargo if the event prevents a party from performing the party’s obligations in accordance with this Agreement and is beyond the reasonable control of that party; and (b) “Affected Party” means a party prevented from performing the party’s obligations in accordance with this Agreement by an Event of Force Majeure. Workers compensation 9.3 9.5 Definitions relating to force majeure Insurance 9.2 The Contractor must apply for and maintain personal optional protection insurance (consisting of income replacement and medical care coverage) during the Term at the Contractor’s expense if: (a) the Contractor is an individual or a partnership of individuals and does not have the benefit of mandatory workers compensation coverage under the Workers Compensation Act or similar laws in other jurisdictions; and (b) such personal optional protection insurance is available for the Contractor from WorkSafeBC or other sources. Consequence of Event of Force Majeure 10.2 An Affected Party is not liable to the other party for any failure or delay in the performance of the Affected Party’s obligations under this Agreement resulting from an Event of Force Majeure and any time periods for the performance of such obligations are automatically extended for the duration of the Event of Force Majeure provided that the Affected Party complies with the requirements of section 10.3. 21 TOOL KIT APPENDICES Duties of Affected Party (a) by written notice to the Contractor, require that the Event of Default be remedied within a time period specified in the notice; (b) pursue any remedy or take any other action available to it at law or in equity; or (c) by written notice to the Contractor, terminate this Agreement with immediate effect or on a future date specified in the notice, subject to the expiration of any time period specified under section 11.2(a). 10.3 An Affected Party must promptly notify the other party in writing upon the occurrence of the Event of Force Majeure and make all reasonable efforts to prevent, control or limit the effect of the Event of Force Majeure so as to resume compliance with the Affected Party’s obligations under this Agreement as soon as possible. 11 DEFAULT AND TERMINATION Delay not a waiver Definitions relating to default and termination 11.3 No failure or delay on the part of the Province to exercise its rights in relation to an Event of Default will constitute a waiver by the Province of such rights. 11.1 In this section and sections 11.2 to 11.4: (a) “Event of Default” means any of the following: (i) an Insolvency Event, (ii) the Contractor fails to perform any of the Contractor’s obligations under this Agreement, or (iii) any representation or warranty made by the Contractor in this Agreement is untrue or incorrect; and (b) “Insolvency Event” means any of the following: (i) an order is made, a resolution is passed or a petition is filed, for the Contractor’s liquidation or winding up, (ii) the Contractor commits an act of bankruptcy, makes an assignment for the benefit of the Contractor’s creditors or otherwise acknowledges the Contractor’s insolvency, (iii) a bankruptcy petition is filed or presented against the Contractor or a proposal under the Bankruptcy and Insolvency Act (Canada) is made by the Contractor, (iv) a compromise or arrangement is proposed in respect of the Contractor under the Companies’ Creditors Arrangement Act (Canada), (v) a receiver or receiver-manager is appointed for any of the Contractor’s property, or (vi) the Contractor ceases, in the Province’s reasonable opinion, to carry on business as a going concern. Province’s right to terminate other than for default 11.4 In addition to the Province’s right to terminate this Agreement under section 11.2(c) on the happening of an Event of Default, the Province may terminate this Agreement for any reason by giving at least 10 days’ written notice of termination to the Contractor. Payment consequences of termination 11.5 Unless Schedule B otherwise provides, if the Province terminates this Agreement under section 11.4: (a) the Province must, within 30 days of such termination, pay to the Contractor any unpaid portion of the fees and expenses described in Schedule B which corresponds with the portion of the Services that was completed to the Province’s satisfaction before termination of this Agreement; and (b) the Contractor must, within 30 days of such termination, repay to the Province any paid portion of the fees and expenses described in Schedule B which corresponds with the portion of the Services that the Province has notified the Contractor in writing was not completed to the Province’s satisfaction before termination of this Agreement. Province’s options on default Discharge of liability 11.2 On the happening of an Event of Default, or at any time thereafter, the Province may, at its option, elect to do any one or more of the following: RESEARCH RELATIONSHIPS 11.6 The payment by the Province of the amount described in section 11.5(a) discharges the Province from all liability to make payments to the Contractor under this Agreement. 22 TOOL KIT 443 444 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS Notice in relation to Events of Default 13 11.7 If the Contractor becomes aware that an Event of Default has occurred or anticipates that an Event of Default is likely to occur, the Contractor must promptly notify the Province of the particulars of the Event of Default or anticipated Event of Default. A notice under this section as to the occurrence of an Event of Default must also specify the steps the Contractor proposes to take to address, or prevent recurrence of, the Event of Default. A notice under this section as to an anticipated Event of Default must specify the steps the Contractor proposes to take to prevent the occurrence of the anticipated Event of Default. Delivery of notices 12 13.1 Any notice contemplated by this Agreement, to be effective, must be in writing and delivered as follows: (a) by fax to the addressee’s fax number specified on the first page of this Agreement, in which case it will be deemed to be received on the day of transmittal unless transmitted after the normal business hours of the addressee or on a day that is not a Business Day, in which cases it will be deemed to be received on the next following Business Day; (b) by hand to the addressee’s address specified on the first page of this Agreement, in which case it will be deemed to be received on the day of its delivery; or (c) by prepaid post to the addressee’s address specified on the first page of this Agreement, in which case if mailed during any period when normal postal services prevail, it will be deemed to be received on the fifth Business Day after its mailing. DISPUTE RESOLUTION Dispute resolution process 12.1 In the event of any dispute between the parties arising out of or in connection with this Agreement, the following dispute resolution process will apply unless the parties otherwise agree in writing: (a) the parties must initially attempt to resolve the dispute through collaborative negotiation; (b) if the dispute is not resolved through collaborative negotiation within 15 Business Days of the dispute arising, the parties must then attempt to resolve the dispute through mediation under the rules of the British Columbia Mediator Roster Society; and (c) if the dispute is not resolved through mediation within 30 Business Days of the commencement of mediation, the dispute must be referred to and finally resolved by arbitration under the Commercial Arbitration Act. Change of address or fax number 13.2 Either party may from time to time give notice to the other party of a substitute address or fax number, which from the date such notice is given will supersede for purposes of section 13.1 any previous address or fax number specified for the party giving the notice. Assignment 13.3 The Contractor must not assign any of the Contractor’s rights under this Agreement without the Province’s prior written consent. Location of arbitration or mediation 12.2 Unless the parties otherwise agree in writing, an arbitration or mediation under section 12.1 will be held in Victoria, British Columbia. Subcontracting 13.4 The Contractor must not subcontract any of the Contractor’s obligations under this Agreement to any person without the Province’s prior written consent, excepting persons listed in the attached Schedule C. No subcontract, whether consented to or not, relieves the Contractor from any obligations under this Agreement. The Contractor must ensure that: Costs of mediation or arbitration 12.3 Unless the parties otherwise agree in writing or, in the case of an arbitration, the arbitrator otherwise orders, the parties must share equally the costs of a mediation or arbitration under section 12.1 other than those costs relating to the production of expert evidence or representation by counsel. RESEARCH RELATIONSHIPS MISCELLANEOUS 23 TOOL KIT APPENDICES (a) any person retained by the Contractor to perform obligations under this Agreement; and (b) any person retained by a person described in paragraph (a) to perform those obligations fully complies with this Agreement in performing the subcontracted obligations. (b) an agent of the Province except as may be expressly provided for in this Agreement. The Contractor must not act or purport to act contrary to this section. Personnel not to be employees of Province Waiver 13.5 A waiver of any term or breach of this Agreement is effective only if it is in writing and signed by, or on behalf of, the waiving party and is not a waiver of any other term or breach. 13.11 The Contractor must not do anything that would result in personnel hired or used by the Contractor or a Subcontractor in relation to providing the Services being considered employees of the Province. Modifications Key Personnel 13.6 No modification of this Agreement is effective unless it is in writing and signed by, or on behalf of, the parties. 13.12 If one or more individuals are specified as “Key Personnel” of the Contractor in Part 4 of Schedule A, the Contractor must cause those individuals to perform the Services on the Contractor’s behalf, unless the Province otherwise approves in writing, which approval must not be unreasonably withheld. Entire agreement 13.7 This Agreement (including any modification of it) constitutes the entire agreement between the parties as to performance of the Services. Pertinent information 13.13 The Province must make available to the Contractor all information in the Province’s possession which the Province considers pertinent to the performance of the Services. Survival of certain provisions 13.8 Sections 2.9, 3.1 to 3.4, 3.7, 3.8, 5.1 to 5.5, 6.1 to 6.4, 7.1, 7.2, 8.1, 9.1, 9.2, 9.5, 10.1 to 10.3, 11.2, 11.3, 11.5, 11.6, 12.1 to 12.3, 13.1, 13.2, 13.8, and 13.10, any accrued but unpaid payment obligations, and any other sections of this Agreement (including schedules) which, by their terms or nature, are intended to survive the completion of the Services or termination of this Agreement, will continue in force indefinitely, even after this Agreement ends. Conflict of interest 13.14 The Contractor must not provide any services to any person in circumstances which, in the Province’s reasonable opinion, could give rise to a conflict of interest between the Contractor’s duties to that person and the Contractor’s duties to the Province under this Agreement. Schedules Time 13.9 The schedules to this Agreement (including any appendices or other documents attached to, or incorporated by reference into, those schedules) are part of this Agreement. 13.15 Time is of the essence in this Agreement and, without limitation, will remain of the essence after any modification or extension of this Agreement, whether or not expressly restated in the document effecting the modification or extension. Independent contractor 13.10 In relation to the performance of the Contractor’s obligations under this Agreement, the Contractor is an independent contractor and not: (a) an employee or partner of the Province; or RESEARCH RELATIONSHIPS 24 TOOL KIT 445 446 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS Conflicts among provisions Governing law 13.16 Conflicts among provisions of this Agreement will be resolved as follows: (a) a provision in the body of this Agreement will prevail over any conflicting provision in, attached to or incorporated by reference into a schedule, unless that conflicting provision expressly states otherwise; and (b) a provision in a schedule will prevail over any conflicting provision in a document attached to or incorporated by reference into a schedule, unless the schedule expressly states otherwise. 13.21 This Agreement is governed by, and is to be interpreted and construed in accordance with, the laws applicable in British Columbia. 14 INTERPRETATION 14.1 In this Agreement: (a) “includes” and “including” are not intended to be limiting; (b) unless the context otherwise requires, references to sections by number are to sections of this Agreement; (c) the Contractor and the Province are referred to as “the parties” and each of them as a “party”; (d) “attached” means attached to this Agreement when used in relation to a schedule; (e) unless otherwise specified, a reference to a statute by name means the statute of British Columbia by that name, as amended or replaced from time to time; (f) the headings have been inserted for convenience of reference only and are not intended to describe, enlarge or restrict the scope or meaning of this Agreement or any provision of it; (g) “person” includes an individual, partnership, corporation or legal entity of any nature; and (h) unless the context otherwise requires, words expressed in the singular include the plural and vice versa. Agreement not permit nor fetter 13.17 This Agreement does not operate as a permit, license, approval or other statutory authority which the Contractor may be required to obtain from the Province or any of its agencies in order to provide the Services. Nothing in this Agreement is to be construed as interfering with, or fettering in any manner, the exercise by the Province or its agencies of any statutory, prerogative, executive or legislative power or duty. Remainder not affected by invalidity 13.18 If any provision of this Agreement or the application of it to any person or circumstance is invalid or unenforceable to any extent, the remainder of this Agreement and the application of such provision to any other person or circumstance will not be affected or impaired and will be valid and enforceable to the extent permitted by law. Further assurances 13.19 Each party must perform the acts, execute and deliver the writings, and give the assurances as may be reasonably necessary to give full effect to this Agreement. Additional terms 13.20 Any additional terms set out in the attached Schedule F apply to this Agreement. RESEARCH RELATIONSHIPS 25 TOOL KIT APPENDICES 15 EXECUTION AND DELIVERY OF AGREEMENT 15.1 This Agreement may be entered into by a separate copy of this Agreement being executed by, or on behalf of, each party and that executed copy being delivered to the other party by a method provided for in section 13.1 or any other method agreed to by the parties. The parties have executed this Agreement as follows: SIGNED on the _____ day of _______________, 20__ by the Contractor (or, if not an individual, on its behalf by its authorized signatory or signatories): SIGNED on the _____ day of ________________, 20__ on behalf of the Province by its duly authorized representative: Signature(s) Signature(s) Print Name(s) Print Name(s) Print Title(s) Print Title(s) RESEARCH RELATIONSHIPS 26 TOOL KIT 447 448 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS GENERAL SERVICE AGREEMENT SCHEDULE F—ADDITIONAL TERMS Contract # (Version for use with General Service Agreement, between the Province and B.C.’s Public Universities) 1. Despite Section 13.16 of this Agreement, the Contractor and the Province agree that Sections 3.6, 3.8, 5, 6.4(b), 11, and 13.14 of the Agreement are deleted. 2. The Province will indemnify and save harmless the Contractor, its Board of Governors, directors, officers, employees, faculty, students and agents from and against any and all losses, claims, damages, actions, causes of action, costs and expenses that the Contractor, its Board of Governors, directors, officers, employees, faculty, students and agents may sustain, incur, suffer or put to at any time either before or after the expiration or termination of this Agreement, where the same or any of them are based upon, arise out of or occur, directly or indirectly, by reason of any act or omission of the Province, or of any agent, employee, officer, or director of the Province pursuant to this Agreement. 3. (c) was lawfully acquired by the Contractor from a third party who was not under an obligation of confidentiality to the Province; (d) is required by an order of a legal process to disclose, provided that the Contractor gives the Province prompt and reasonable notification of such requirement prior to disclosure; or (e) was independently developed by the Contractor’s employees, agents or consultants who had no knowledge of or access to the Province’s information as evidenced by the Contractor’s records. The Contractor will treat as confidential all information or material which are clearly marked as confidential or proprietary when first disclosed (“Confidential Information”) by the Province and supplied to or obtained by the Contractor, or any sub-contractor, under this Agreement and will not, without the prior written consent of the Province, except as required by applicable law, permit its disclosure except to the extent that such disclosure is necessary to enable the Contractor to fulfill its obligations under this Agreement. Confidential Information may also include information furnished during discussions or oral presentations if it is conspicuously identified as proprietary at the time and then transcribed or confirmed in writing within thirty (30) days, specifically describing what portions of such information is considered to be proprietary or confidential. However, the Contractor is under no obligation to maintain the confidentiality of Confidential Information which the Contractor can show: The Contractor is entitled to a Harmonized Sales Tax rebate from the Federal Government and will, therefore, charge to the Province only the non-refundable portion of the Harmonized Sales Tax, as applicable to the Services. 5. The Contractor must not knowingly allow its research personnel involved in performing the Services, to provide any services to any person in circumstances that could give rise to a conflict of interest between their duties to that person and their duties to the Province under this Agreement. 6. Any of the following events will constitute an Event of Default, namely: (a) the Contractor fails to comply with any material provision of this Agreement; (b) any representation or warranty made by the Contractor in accepting this Agreement is untrue or incorrect; or (c) any information, statement, certificate, report or other document furnished or submitted by or on behalf of the Contractor pursuant to or as a result of this Agreement is untrue or incorrect. 7. (a) is or subsequently becomes generally available to the public through no act or fault of the Contractor; (b) was in the Contractor’s possession prior to its disclosure by the Province to the Contractor; RESEARCH RELATIONSHIPS 4. 27 Either party may terminate this Agreement for any reason by giving at least thirty (30) days written notice to the other party. TOOL KIT APPENDICES 8. or other publications, accounts of the work pertaining to this Agreement. Publications, conference presentations, symposia and all other dissemination of material pertaining to the Services will recognize the Ministry of . Upon the occurrence of any Event of Default and at any time thereafter the Province may, notwithstanding any other provision of this Agreement, at its option, elect to do any one or more of the following: (a) terminate this Agreement, in which case the payment of the amount required under Section 10 of this Schedule will discharge the Province of all liability to the Contractor under this Agreement; (b) require the Event of Default be remedied within a time period specified by the Province; (c) suspend any instalment of the payments under Schedule B or any amount that is due to the Contractor while the Event of Default continues; (d) waive the Event of Default; and (e) pursue any other remedy available at law or in equity. 9. The Province may also, at its option, terminate this Agreement immediately if the Province determines that the Contractor’s failure to comply places the health or safety of any person conducting the Services at immediate risk, and the payment of the amount required under Section 10 of this Schedule will discharge the Province of all liability to the Contractor under this Agreement. 10. Where this Agreement is terminated before 100% completion of the Services, the Province will pay to the Contractor all costs and liabilities, including uncancellable commitments, relating to the Services which have been incurred by the Contractor, not to exceed the Maximum Amount specified in Schedule B, as of the date of receipt of notice of termination or the date of termination, whichever is later. 11. The Province hereby grants the Contractor a perpetual non-exclusive, irrevocable, world-wide, fully paid up and royalty-free license to use, make, copy, translate, practice, produce, distribute, or further develop the Produced Material for scientific, educational, public good and other non-commercial uses. 12. In addition to Section 11, with the prior approval of the Province, which will not be unreasonably withheld, the Contractor may present publications at symposia, national or regional professional meetings, or publish in journals RESEARCH RELATIONSHIPS 28 13. At the expiry or earlier termination of this Agreement, the Province may, at its sole discretion, negotiate with the Contractor to provide to the Contractor a license (which may be exclusive or non-exclusive) for the Contractor to use, reproduce, modify or distribute some or all of the Produced Material for commercial purposes. 14. In addition to Section 13.8 of this Agreement, the provisions contained in this Schedule continue in force indefinitely even after this Agreement ends. 15. The indemnity granted by the Contractor under this Agreement has been approved in accordance with the Financial Administration Act, Guarantees and Indemnities Regulation 1.1(b) under Indemnity No.100969. The indemnity granted by the Province to the Contractor is approved in accordance with the Financial Administration Act, Guarantees and Indemnities Regulation 1(b) under Indemnity No. 080497. 16. The Contractor makes no representations or warranties, either express or implied, with respect to any data or results arising from the services. The Contractor specifically disclaims any implied warranty of non-infringement or merchantability or fitness for a particular purpose and will in no event be liable for any loss of profits, be they direct, consequential, incidental, or special or other similar or like damages arising from any defect, error or failure to perform, even if the institution has been advised of the possibility of such damages. The Province hereby acknowledges that the services are of an experimental and exploratory nature, that no particular results can be guaranteed, and that it has been advised by the Contractor to undertake its own due diligence with respect to all matters arising from this Agreement. This section 16 will survive termination or expiration of this Agreement. TOOL KIT 449 450 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS Reference Table Version 1.3 WHO & WHAT Type of Grant Research Relationship September 2010 Sponsored Research Agreements Service Contracts Legal Instrument Grant Letter (STOB 77) Transfer Under Agreement (also known as Contribution Agreement – STOB 80) General Service Agreement [under $250,000] or Service Contract [over $250,000] (STOB 60 or 61) with Schedule F to address issues specific to university research REFERENCES Refer to Sample Grant Letter Refer to Sample Sponsored Research Agreement (“Transfer Under Agreement for Research at a BC Public University”) Refer to General Service Agreement (GSA) Template with Sample Schedule F (“General Service Agreement Schedule F—Additional Terms for Research Services provided by a Public University”) Reference Document 1—Core Policy Manual Chapter 4.3.14— Transfer Payments 1 Parties Province of British Columbia and the University (may include affiliated teaching hospitals as a third party). Province of British Columbia and the University (may include affiliated teaching hospitals as a third party to the Agreement). DELIVERABLES 2 Province of British Columbia and the University (may included affiliated teaching hospitals as a third party to the Contract.) Note that these guidelines are not intended to cover personal consulting arrangements between individual university faculty members and the Province. Reference Document 3—Fact sheet on personal consulting activities of academics REFERENCE 1 Reference Document 2—Core Policy Manual Chapter 6—Procurement 2 Purpose Performs investigator defined research, sometimes in response to a government-issued call for proposals or in accordance with government criteria. Contribute to research project/ program as per project description. Provision of research, advisory services or specific expertise for the direct use or benefit of the Province. Research Reporting No specific result is specified. Researcher may be required to report, present or otherwise demonstrate the results of the grant. Research conducted in accordance with the work plan and Researcher reports on research results as per research project description in Schedule A. As per services described in Schedule A. Financial Reporting None. Financial reporting as defined in Section 8 of the Sample Agreement. Usually none except on an “as requested” basis if defined in the contract. http://www.fin.gov.bc.ca/ocg/fmb/manuals/CPM/04_Expense_Mgmt.htm#4314 http://www.fin.gov.bc.ca/ocg/fmb/manuals/CPM/06_Procurement.htm RESEARCH RELATIONSHIPS 29 TOOL KIT APPENDICES Type of Grant Research Relationship Payment Lump sum. FINANCIAL REFERENCE Sponsored Research Agreements Service Contracts Typically fixed prices, but may vary as per Payment schedule linked to reporting, deliverables or milestones as per negotiated Schedule B. Schedule B. Refer to Sample Schedule B included as part of Sample Sponsored Research Agreement Reference Document 4—Sample Schedule B for General Service Agreement http://www.pss.gov.bc.ca/psb/GSA/docs/GSA.doc Included in the pricing as per University policies or procedures. Included in the price. Overhead Included in the lump sum. Payment Timing In advance. Funds provided Upon invoice. May be timing- or mile- As per negotiated schedule outlined in along with or shortly after stone-based, as per Schedule B. An Schedule B. An advance payment may grant letter. advance payment may be negotiated. be negotiated. Reference Document 5—Government policy on advance payments: http://www.fin.gov.bc.ca/ocg/fmb/manuals/CPM/04_Expense_Mgmt.htm#439d REFERENCE Use of Funds Funds applied as per Schedule B. The Province issues no specific guidelines on use of funds. Universities are expected to apply internal financial control policies to ensure that funds are applied to expenses directly attributable to the project. Harmonized Payment is all-inclusive. Sales Tax No separate provision for HST required. (HST) REFERENCE RESEARCH RELATIONSHIPS The portion of HST not recoverable by the universities is reimbursable and is specified in the Sample Agreement in Section 3. Funds applied as per Schedule B. Applicable to time and materials contract. The portion of HST not recoverable by universities is reimbursable, as specified in Sample Schedule F, Section 4. Reference Document 6—Procurement Guidelines on Reimbursable HST 30 TOOL KIT 451 452 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS RESEARCH OUTPUTS Type of Grant Research Relationship Sponsored Research Agreements Service Contracts In most cases, the University or Researcher owns all results, data, inventions, improvements and other IP produced by the project in accordance with its policies. The Province is allocated rights/license for non-commercial uses. However, arrangements for specific projects can vary and will depend on the particular circumstances. Government owns the IP and will require assignment of the IP. Intellectual Property (IP) Letter does not include IP provisions. The University or Researcher owns all results, data, inventions, improvements and other IP produced by the grant project in accordance with its policies. REFERENCE Reference Document 7—Fact Sheet on Research Materials and Intellectual Property Right to Use and Commercialization The Province may receive a report on research results but normally does not have rights to use research results, data or other IP. The Province may, in some circumstances, use the research results and data for internal purposes. In most cases, the University or Researcher owns all results, data, inventions, improvements and other IP produced by the project in accordance with its policies. The Province is allocated rights/license for non-commercial uses. However, at a minimum, universities retain the right to use Research Materials for scholarly and academic purposes. Province purchases rights to all new IP and therefore may use without restrictions. The Province may provide the university with a royalty-free perpetual license for academic and educational purposes. Indemnity No indemnity provisions included. Mutual indemnity. Mutual indemnity. Refer to Sample Sponsored Research Refer to GSA Template, Sample Schedule F, Agreement, Section 14 Section 2 REFERENCE Insurance No insurance provisions included. Section 12 of the Sample Sponsored Research Agreement identifies insurance held by universities. No further provisions required. Universities have sufficient liability insurance to cover research activites including those which the Province purchases. No Schedule D required. Waiver of Moral Rights No waiver of moral rights required, as per IP provisions. Waivers may be required by the Province for project reports. Waivers should be obtained prior to finalizing the agreement and do not extend beyond these project reports. A waiver(s) may be required from individual researcher(s). Waivers should be obtained prior to finalizing the contract. RESEARCH RELATIONSHIPS 31 TOOL KIT APPENDICES PRIVACY & ACCESS TO INFORMATION PUBLICATION & CONFIDENTIALITY Type of Grant Research Relationship Sponsored Research Agreements Service Contracts Release of Information & Public Acknowledgement Universities are required to make publicly available basic information on the project. Universities are required to make publicly available basic information on the project. Universities are required to make publicly available basic information on the project. Researcher should acknowledge support of the Province. Researcher should acknowledge support of the Province. Government determines release of data and/or reports. Parties may negotiate government acknowledgement of the contribution of the university. Publication The University has unrestricted rights. University reserves the right to pub- University reserves the right to publish lish accounts of the research; certain accounts of the research; certain terms may terms may be subject to negotiation. be subject to negotiation. Refer to Sample Sponsored Research Refer to GSA Template, Sample Schedule F, Agreement, Section 16 Section 12 REFERENCE The Province and the University must keep each other’s confidential information confidential. Both the Province and BC’s public universities are bound by the Freedom of Information and Protection of Privacy Act. The Province and the University must keep each other’s confidential information confidential. Both the Province and BC’s public universities are bound by the Freedom of Information and Protection of Privacy Act. Confidentiality (Universities do not conduct secret research) Normally, no confidentiality provisions included. If necessary, confidentiality provisions should be addressed in a separate agreement, such as a data-sharing or nondisclosure agreement. REFERENCE Reference Document 8—Sample employee/researcher confidentiality agreement Privacy, Access to, and Use of Personal Information If access to Ministry data is required, or, if exchange of personal or confidential information will occur, a separate agreement is required. Ministry officials should consult with their Ministry’s Data Steward or Freedom of Information and Privacy Branch for assistance. Universities should consult with the office responsible for access to information and protection of privacy at their institution. RESEARCH RELATIONSHIPS 32 TOOL KIT 453 454 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS ADMINISTRATION Type of Grant Research Relationship Sponsored Research Agreements Service Contracts Statement of Work Researcher-generated proposal constitutes statement of work. Required and constitutes Schedule A. Sufficient detail to ensure appropriate conduct and oversight. Required and constitutes Schedule A. Sufficient detail to ensure appropriate conduct and oversight. Budget Only if required as part of an application process. Required in proposal. May be included in Schedule B, depending on terms of payment. Not required. Budget is as per the price. Conflict of Interest No conflict of interest provisions included. Conflict of interest provisions apply to the research personnel involved in research project. Conflict of interest provisions apply to the research personnel involved in providing the services. Refer to Sample Sponsored Research Refer to GSA Template, Sample Schedule F, Agreement, Section 9 Section 5. REFERENCE Dispute Resolution No dispute resolution mechanism required. REFERENCE RESEARCH RELATIONSHIPS Parties can choose one of two options. (1) Any disputes will first be addressed through mediation. Should no amicable settlement be reached by the parties within 30 days, either party may initiate judicial proceedings. OR (2) Disputes will be resolved by arbitration. The preferred option can vary by university. One option should be selected before the agreement is finalized. Parties initially attempt to resolve the dispute through collaborative negotiation. Should no amicable solution be reached within 15 business days, mediation must be used under the rules of the BC Mediator Roster Society. If not settled within 30 business days by mediation, the dispute must be resolved by arbitration. Refer to Sample Sponsored Research Refer to GSA Template, Section 12 Agreement, Section 13 33 TOOL KIT APPENDICES REFERENCE DOCUMENT 1 Core Policy Manual Chapter 4.3.14 —Transfer Payments Also available at: http://www.fin.gov.bc.ca/ocg/fmb/manuals/CPM/04_Expense_Mgmt.htm#4314 4.3.14 TRANSFER PAYMENTS Documentation and Payment Management Transfer payments are transfers of money from the Province to an individual, an organization or another government for which the Province does not receive any goods or services directly in return, does not expect to be repaid in the future, and does not expect a financial return. Transfer payments are distinct and separate in this respect from other acquisitions by government where it receives goods or services directly in exchange for a payment. 6. Written documentation between the Province and the recipient is required in support of a transfer payment. For Grants and Entitlements, the use of an application form or correspondence with the recipient may be sufficient. For a Transfer Under Agreement, a formal written agreement must be used that clearly identifies the terms and conditions (see Appendix 3 for guidance). Where it is necessary, ministries are to seek legal counsel in developing a transfer agreement. Accounting and Classification 7. Transfer payments must be managed in a manner that: 1. Transfer payments must be defined in accordance with the criteria described in Appendix 1 as one of three payment categories: • is open and transparent to the public; • provides for government independence and objectivity; • Grant; • Entitlement; or • clearly identifies roles and responsibilities; • Transfer Under Agreement (including shared cost). • provides adequate administration and documentation; and • takes into consideration economy, efficiency and effectiveness. 2. Transfer payments must be recorded and reported accurately, completely and on a timely basis to comply with government’s accounting policy as described in Appendix 2. 8. The responsible ministry must undertake measures to conduct appropriate due diligence on a prospective transfer payment recipient, including, where applicable, credit and background checks on key signatories, verification of business references and other certifications. General Payment Standards 3. Transfer payments must support approved ministry service plans and program objectives. 9. The engagement of a Transfer Under Agreement must demonstrate accountability and economic efficiency. The choice of a service provider shall follow government’s competitive selection process unless a direct award condition applies, or where 4. A transfer payment must be authorized by a ministry official who has been delegated expense authority for this purpose. 5. A transfer payment shall only be made: • for specified purposes in accordance with established eligibility criteria; • under a statutory authority, formula or regulation; or in accordance with a formal agreement, or a shared-cost agreement for the purposes specified in an agreement. • RESEARCH RELATIONSHIPS 34 • financial assistance is provided to a specified target group or population (e.g., a First Nation, or a direct beneficiary—individual or family or legal guardian of that individual under a community/social service program); or • it is a shared cost agreement or a public private partnership where a competitive selection is not appropriate. TOOL KIT 455 456 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS 10. Records of transfer payments, and an appropriate management information system and monitoring strategy must be maintained by the responsible ministry to ensure the terms and conditions for the transfer payment are met. 11. The performance review of a recipient must be carried out with independence and objectivity. An employee shall not take part in a performance review if he/she is exposed to an actual, perceived or potential conflict of interest in relation to a performance review. Repayment of a Transfer Payment 12. Where a transfer payment is paid • after the expiry of eligibility; • on the basis of fraudulent or inaccurate information; • in error; or • the recipient has not complied with the terms and conditions for the payment, 13. the ministry executive financial officer or other designated ministry official will determine the extent of repayment with reference to the nature and severity of the situation, and record the amounts owing as a debt receivable to the government. 14. Refund of an overpayment is required immediately or reasonable arrangements must be made to ensure repayment in due course. RESEARCH RELATIONSHIPS 35 TOOL KIT APPENDICES REFERENCE DOCUMENT 2 Core Policy Manual Chapter 6 —Procurement Full chapter available at http://www.fin.gov.bc.ca/ocg/fmb/manuals/CPM/06_Procurement.htm Table of Contents 6.0 Procurement Part II: Vendor Complaint Review Process For Government Procurement Part I: Procurement 6.1 Objectives 6.2 6.3 General Policy 6.3.1 Procurement Planning 6.3.2 Pre-Award and Solicitation All Procurement Goods Services and Construction Continuing Service Agreements 6.3.3 Contract Award—all procurement Selection and Award Responses Pricing Administration 6.3.4 Corporate Supply and Disposal Arrangements Rentals and Leasing Photocopying Equipment and Supplies Repairs and Maintenance Disposal of Surplus Assets Crown Copyright Disposal of Intellectual Property 6.3.5 Information Management and Information Technology Procurement General Unsolicited Proposals 6.3.6 Contract Administration and Monitoring Receipt of Goods Payment Monitoring, Evaluation and Reporting Deficient Performance Breach Asset Management Disputes RESEARCH RELATIONSHIPS 36 6.1 Objectives 6.2 General 6.2.1 Definitions 6.2.2 Scope of VCRP 6.2.3 Roles and Responsibilities 6.3 Policy 6.4 Information and References 6.4.1 Common Business Services 6.4.2 BC Bid 6.4.3 Request for Proposals 6.4.4 Trade Agreements 6.4.5 Disclosure of Contract Information 6.4.6 Risk Management Branch TOOL KIT 457 458 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS REFERENCE DOCUMENT 3 Fact Sheet on Personal Consulting Activities of Academics It is therefore essential, when discussing a project with a university researcher, to be clear on whether the professional services of the researcher are requested and offered in an external consultant or a university capacity. If university facilities, employees or services are necessary to complete the contract or the reputation and endorsement of the university is a factor, then the activities are university activities and must be addressed through negotiation with the university, leading to an agreement to which the university is a party. If, however, the participation of the individual faculty member properly qualifies as his or her outside professional activities, then the Province and individual are free to develop their own contractual terms without recourse to the Reference Table, which does not apply. Academics may engage in outside professional activities by way of personal consulting arrangements, which, by university policy, are personal to them and do not include the material use of university facilities, staff or students, or services. When negotiating terms with academics for the conduct of research projects or for professional services, it is important to be aware of the distinction between: • • an individual acting in his or her personal capacity; and the same individual acting in his or her capacity as an academic employee of a university. It is usual for universities to encourage faculty members to engage in outside professional activities, both paid and unpaid, that involve the application of special skills and knowledge within the researcher’s particular academic competence. Universities recognise that outside professional activities, conducted with professional and academic responsibility, accrue indirect benefits to the university as well as enhancing the professional, scholarly and scientific strengths of the individual. Faculty members may engage in outside professional activities under the following guidelines. The activities: • • • • • do not impinge on employment duties at the university; do not give rise to conflicts of interest; do not make material use of university facilities, staff or students, services, or intellectual property; are covered under agreements which are personal arrangements between the faculty member and the third party; and, do not purport to represent the university in any manner. Similar guidelines (contained in the Standards of Conduct for Public Service Employees, revised September 2003) govern employees of the Province of British Columbia in conducting outside remunerative and volunteer work. RESEARCH RELATIONSHIPS 37 TOOL KIT APPENDICES REFERENCE DOCUMENT 4 Sample Schedule B—Fees and Expenses for General Service Agreement Also available at: http://www.pss.gov.bc.ca/psb/GSA/docs/GSA.doc [A customized form of Schedule B is always attached to the GSA.] 3. EXPENSES Expenses: [If the Contractor is not to be paid for any expenses, delete paragraphs a. to c. below and insert “None.”] a. travel, accommodation and meal expenses for travel greater than _______ [insert “32 kilometers” or other agreed distance] away from ____________ [insert place in which Contractor is located or other agreed location] on the same basis as the Province pays its ___________ [insert “Group I“ or “Group II“ or ? to complete this paragraph] employees when they are on travel status; and 1. MAXIMUM AMOUNT PAYABLE Maximum Amount Despite sections 2 and 3 of this Schedule, $_________ is the maximum amount which the Province is obliged to pay to the Contractor for fees (exclusive of applicable taxes) and expenses under this Agreement. 2. FEES [Choose one or a combination of the following and delete the rest.] Daily Rate Fees: at a rate of $____ per day (based on a day of ___ hours) for those days during the Term when the Contractor provides the Services. If the Contractor provides the Services for less than the required hours on any day, then fees for that day will be reduced proportionally. b. the Contractor’s actual long distance telephone, fax, postage and other identifiable communication expenses; and c. [Describe here if any other type of expense to be permitted.] 4. STATEMENTS OF ACCOUNT Hourly Rate [If daily, hourly or unit rate use the following section 4.] Fees: at a rate of $____ per hour for those hours during the Term when the Contractor provides the Services. Statements of Account: In order to obtain payment of any fees and expenses under this Agreement for [insert description of billing period here—see examples below] (each a “Billing Period”), the Contractor must deliver to the Province on a date after the Billing Period (each a “Billing Date”), a written statement of account in a form satisfactory to the Province containing: Rate per Unit/Deliverable Fees: at a rate of $____ for each [unit/deliverable] provided by the Contractor as Services during the Term up to ___ [units/deliverables]. [Examples of billing period descriptions: “a period from and including the 1st day of a month to and including the last day of that month” OR “a period from and including the 15th day of a month to and including the 14th day of the next month.”] Flat Rate Fees: $__ for performing the Services during the Term. (a) the Contractor’s legal name and address; (b) the date of the statement, and the Billing Period to which the statement pertains; RESEARCH RELATIONSHIPS 38 TOOL KIT 459 460 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS (e) the Contractor’s calculation of all applicable taxes payable by the Province in relation to the Services; (c) the Contractor’s calculation of all fees claimed for that Billing Period, including a declaration by the Contractor of [Choose one of the following: For Daily Rate situations - “all hours worked on each day during the Billing Period”; For Hourly Rate situations - “all hours worked during the Billing Period”; For Rate per Unit/Deliverable situations - “all (units/deliverables) provided during the Billing Period”] for which the Contractor claims fees and a description of the applicable fee rates; (f) a description of this Agreement to which the statement relates; (g) a statement number for identification; and (h) any other billing information reasonably requested by the Province. 5. PAYMENTS DUE Payments Due: Within 30 days of our receipt of your written statement of account delivered in accordance with this Schedule, we must pay you the fees (plus all applicable taxes) and expenses, claimed in the statement if they are in accordance with this Schedule. Statements of account or contract invoices offering an early payment discount may be paid by us as required to obtain the discount. (d) a chronological listing, in reasonable detail, of any expenses claimed by the Contractor for the Billing Period with receipts attached, if applicable; (e) the Contractor’s calculation of any applicable taxes payable by the Province in relation to the Services for the Billing Period; (f) a description of this Agreement; (g) a statement number for identification; and (h) any other billing information reasonably requested by the Province. [If flat rate, use the following section 4.] Statements of Account: In order to obtain payment of any fees and expenses under this Agreement, the Contractor must deliver to the Province at the end of the Term or, if the Contractor completes the Services before that time, on the completion of the Services, a written statement of account in a form satisfactory to the Province containing: (a) the Contractor’s legal name and address; (b) the date of the statement; (c) the Contractor’s calculation of all fees claimed under this Agreement, including a declaration that the Services for which the Contractor claims fees have been completed; (d) a chronological listing, in reasonable detail, of any expenses claimed by the Contractor with receipts attached, if applicable; RESEARCH RELATIONSHIPS 39 TOOL KIT APPENDICES REFERENCE DOCUMENT 5 Government Policy On Advance Payments Also available at: http://www.fin.gov.bc.ca/ocg/fmb/manuals/CPM/06_Procurement.htm#1636b Core Policy Manual Chapter 6—Procurement SECTION 6.3.6—CONTRACT ADMINISTRATION AND MONITORING b. Payment 1. A contract summary record must be maintained for all service contracts, either by using a contract summary sheet, or equivalent electronic record. 2. A contract cannot include a cost overrun clause. If a cost overrun is unavoidable, ensure the costs are justified. Any overrun is to be authorized in advance using a modification agreement form. There may be additional approval requirements triggered by cost overruns. 3. Fees, Expenses, Maximum Amount, Statements of Account, and Payments Due, must be contained in Schedule B to contracts. This applies whether the contract is established on the basis of Daily Rate, Hourly Rate, Rate per Unit/Deliverable or Flat Rate. (For contractor travel, refer to Travel, Contractors.) 4. All contract quotations must exclude the HST. Statements of accounts must include a calculation of fees (plus applicable taxes, such as HST) and expenses. 5. Ministries must ensure that payments made to contractors who are non-residents of Canada comply with the withholding tax provisions of the federal Income Tax Act. 6. Payments made in advance must be specifically provided for in the contract or in accordance with a formal modification agreement. The contract or modification agreement must specify how the advances are: • • • to be deemed to be earned; or if the services are not subsequently rendered, to be repaid; and what interest rate, if any, must apply. RESEARCH RELATIONSHIPS 40 TOOL KIT 461 462 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS REFERENCE DOCUMENT 6 Government Procurement Guidelines on Reimbursable HST REFERENCE DOCUMENT 6.1.docx (A comprehensive review of government policy on reimbursable HST is underway. That review may result in changes to this reference document.) HARMONIZED SALES TAX (HST) Reimbursing HST to Non‑Employees Non‑Profit** and Public Sector Organizations Ministries might have contracts with non-profit organizations, municipalities, schools, hospitals or universities for the provision of goods or services to government or third parties. These types of organizations may ask the government to share their HST burden as part of the contract cost. As a general government practice, HST paid by a contractor on travel costs is not reimbursed. Suppliers of taxable goods and services should be registered with Canada Customs and Revenue Agency and can claim a recovery of HST paid as an input tax credit. There are several exceptions to note: In cases where these types of organizations are contracting with government on a shared cost basis or a full-cost recovery basis, contract administrators may be asked to include HST costs in amounts eligible for reimbursement. This can be agreed to, but note that these organizations may be eligible for a rebate of part of their HST burden (as outlined in CPPM M.6). Small Suppliers Small businesses or business persons with annual sales of less than $30,000 are not required to register with Canada Customs and Revenue Agency. If a ministry chooses to contract with a small supplier because it is cost effective, the ministry will reimburse the small supplier for the HST paid in providing the service. If the provincial government were to share the cost of a municipal works project on a 50/50 basis, the government’s 50% share should be calculated net of the 50% federal portion of the HST and net of the 57% rebate on the provincial portion of the HST which the municipality is eligible for (CPPM M.6). When contracting with the types of organizations listed above, ensure that all eligible HST rebates have been (or will be) claimed prior to final determination of the provincial government’s share of costs. Supplier of Exempt Services HST is not payable on exempt services and suppliers of exempt services would not charge HST on their billings or claim input tax credits. Examples of exempt services are health care services (e.g., sessional doctor services), some educational services, and personal and child care services. As a supplier of exempt services cannot recover the HST as input tax credits, the government will reimburse the supplier for the HST paid on travel and other reimbursable expenses. If the provincial government provided a grant simply to assist toward the cost of a project, HST costs would not be added to the amount of the grant. Volunteers ** Non-profit organizations must have at least 40% of their total revenue funded by government to qualify for this rebate. RESEARCH RELATIONSHIPS Volunteers are reimbursed for the HST paid on travel and other reimbursable expenses. Where possible (see CPPM D.7 Travel Charge Direct Billings), direct billings of travel expenses to the ministries will minimize the amount of HST to be reimbursed by the government. Appointees to Agencies, Boards and Commissions OIC appointees are reimbursed for the HST paid on their travel and other reimbursable expenses. 41 TOOL KIT APPENDICES REFERENCE DOCUMENT 7 Fact Sheet on Research Materials and Intellectual Property Research Materials and Intellectual Property The conduct of academic research may result in the production of a range of research materials including: 3. Control—the ability to decide where and when to file IP protection, if/how to develop IP into products/services, where to market products, etc.; 1. Ideas, research findings, software, data, specifications, drawings, documents (“Research Materials”); 4. Economic—revenue and costs related to IP protection, development and marketing; 2. Interim and final project reports (“Project Reports”); and 5. Attribution—who claims credit for inventing and/or developing IP; and 3. Academic publications, academic presentations, and theses (“Academic Reports”). 6. Risk—product liability, infringement claims, and regulatory compliance. Intellectual Property (“IP”) is defined in the Glossary (Reference Document 9) as: In general, under the terms of a Grant letter (STOB 77), ownership of Research Materials, Project Reports, Academic Reports and IP will vest with the recipient and the Province receives no rights. Under the terms of a General Services Agreement (STOB 60 or 61) the opposite is true and ownership of Project Reports and IP vests solely in the Province. With Sponsored Research Agreements (Contribution Agreements, STOB 80), ownership and rights to use Research Materials, Project Reports, Academic Reports and IP varies, and depends on the particular circumstances. Intangible (non-physical) property which includes scientific or scholarly discoveries, copyright, computer software, moral rights related to copyrighted materials, trademarks, official marks, domain names, patents, industrial designs, literary, artistic, musical or visual works and know-how. Although intellectual property rights are associated with a wide range of products of the human intellect, such as training manuals, publications, map products, videos and computer software, they are distinct from the physical medium on which these products are produced. The intellectual property is the set of rights arising from the creation and development of these products. For example, if a physical book is produced, the author’s copyright in that book is the intellectual property. While the approach taken under a Sponsored Research Agreement/Contribution Agreement will vary, in general, the following general principles should be considered: • The six attributes of IP rights (see above) will be determined at the project outset and will vary according to the class of material (Research Materials, Project Reports, and Academic Reports); 1. Ownership—legal title to the IP, and subject to an agreement to the contrary, all of the following rights; • Ownership of Research Materials, Project Reports, Academic Reports and IP vests, in the absence of an agreement to the contrary, in the creator/inventor or his/her employer; 2. Rights to use: • While the Sponsored Research Agreement may stipulate that ownership of Research Materials, Project Reports, Academic Reports and IP vest in either the Province or the recipient, academic institutions prefer to retain all ownership rights and may provide the Province with a royalty Attributes of IP rights include: • for scholarly and academic purposes; • for public purposes (by the Province, its contractors, or the general public); and • for commercial purposes (by the private sector); RESEARCH RELATIONSHIPS 42 TOOL KIT 463 464 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS free, perpetual license to use Research Materials, Project Reports, and IP for public purposes. This may include a waiver of moral rights by the authors of the Project Reports; • In all research projects, it is essential to the academic institutions that, at a minimum, they retain the right to use Research Materials for scholarly and academic purposes and that they retain for the authors ownership of copyright of Academic Reports; and The owner of the IP rights retains the authority to issue licences to third parties, including for-profit corporations, for academic, research, and/or commercial purposes. Academic institutions do not assume risk for commercial use of research results. IP is provided to companies on an “as is” basis, and the companies will be required to indemnify the academic institution for their use. The parties may negotiate the transfer of all or some of the IP rights from one party to another on a case-by-case basis. RESEARCH RELATIONSHIPS 43 TOOL KIT APPENDICES REFERENCE DOCUMENT 8 Sample Employee/Researcher Confidentiality Agreement Employee/Researcher Confidentiality Agreement Sample provided for illustrative purposes only. For assistance, consult with your organization’s office responsible for administration of the Freedom of Information and Protection of Privacy Act. I, __________________________________, do solemnly swear/affirm that: 1. I am an employee/secondee/graduate research assistant employed by _____________________ and as such have access to student, teacher and school records and data as defined in the School Act, R.S.B.C. 1996, c. 412, and to data acquired by ________________________ and the Province of British Columbia. I understand and acknowledge that such data is subject to the provisions of the Freedom of Information and Protection of Privacy Act and/or the Protection of Privacy Act, of British Columbia. 2. I will not disclose to any organization, company or person any personal information from these records and data sets unless I am permitted or compelled to do so by legislation of British Columbia or Canada. 3. I will report any and all requests, demands or requirements by foreign entities made upon me or my employer for disclosure of personal information to which I may have access to__________________ and the Office of the Information and Privacy Commissioner for British Columbia. 4. I acknowledge that I have read and will abide by the terms and conditions of the contractual agreement, instructions and/or policies of __________________________ with respect to the use, security and protection of the personally identifiable data. 5. I have read, acknowledge and understand the provisions of sections 30, 30.1, 30.2, 30.3 and 30.4 of the Freedom of Information and Protection of Privacy Act and, by signature, agree to adhere to these provisions. I also acknowledge that a breach by me of any of those sections could result in the penalties as outlined in section 74 being applied against myself or ________________ as may be appropriate through process of law. I also acknowledge that a breach by me of these sections 30 through 30.4 will also be deemed a breach of the agreement under which either myself or my employer are engaged to the Ministry and may result in its immediate termination. Signed: _____________________________ Date: ______________________________________ A copy of the FOIPPA sections referred to above has been provided to me ____________ (initials). I make this declaration knowing it is of the same legal force and effect as if I made it under oath. Sworn before me (witness signature): ______________________________________ Witness Name: ______________________________________ Witness Position: ______________________________________ RESEARCH RELATIONSHIPS 44 TOOL KIT 465 466 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS REFERENCE DOCUMENT 9 Glossary Assignment of Intellectual Property Rights Confidential Information Assignment means to transfer all or part of one’s property, interest or rights to another party. Payment may be received up-front or at some later date. Confidential information is information that is disclosed by one party to another and is not intended for disclosure to any other party. It may include trade secrets, know-how, show-how, concepts, discoveries, inventions, research or technical data and other proprietary information or material (biological or otherwise). Confidential Information does not include information that: Audio‑Visual and Computer Materials These materials include, but are not limited to, audio and video tapes, films, slides and photographs, computer programs and computer-stored information. Background Intellectual Property Background intellectual property is intellectual property that was created prior to a specific date and is normally relevant to the contract or agreement being entered into. Background intellectual property is normally owned by the person or entity that creates it and usually continues to be so owned, although cross-licensing may be necessary to support the use of intellectual property developed during the research project (Foreground Intellectual Property). Commercial Being able to yield or make a profit; prepared, done, or acting with sole or chief emphasis on saleability, profit, or success: a commercial product. Source: commercial. Dictionary.com. Dictionary.com Unabridged (v 1.1). Random House, Inc. http://dictionary.reference.com/ browse/commercial (accessed: February 14, 2007) • is or subsequently becomes generally available to the public through no act or fault of recipient; • was in the possession of recipient prior to its disclosure by the provider to the recipient; • was lawfully acquired by recipient from a third party who was not under an obligation of confidentiality to provider; • is required by an order of a legal process to disclose, provided that recipient gives provider prompt and reasonable notification of such requirement prior to disclosure; or • independently developed by employees, agents or consultants of the recipient who had no knowledge of or access to the discloser’s information as evidenced by the recipient’s records. Conflict of Commitment • • use at or for a commercial enterprise; use for financial gain, personal or otherwise; A conflict of commitment is a situation where the external professional activities of a member are so substantial or demanding of the member’s time and attention as to interfere or adversely affect the discharge of the member’s responsibilities to the University, or where the non-University activities of a member involve the use of University resources. • use at home, for which an individual will be paid in connection with its use; Conflict of Interest • use in connection with administering a commercial website; • use in connection with the provision of services for which an individual or firm is compensated in excess of operating costs. Examples of Commercial use include, but are not limited to: RESEARCH RELATIONSHIPS Conflict of interest means a situation where a person is in a position to influence, either directly or indirectly, University business, research, or other decisions in ways that could advance the researcher’s own interests or the interests of a related party, to the detriment of the University’s interests, integrity or fundamental mission. In the research context, conflict of interest includes a situation where financial or other personal consider- 45 TOOL KIT APPENDICES ations may compromise, or have the appearance of compromising, an investigator’s professional judgment in conducting or reporting research. Conflicts of interest may be potential, actual or apparent. Freedom to Operate Freedom to operate refers to the ability to commercially produce, market or use a product, process or service without infringing the intellectual property rights of others. The Provincial Government views Conflict of Interest occurring when an employee’s private affairs or financial interests are in conflict, or could result in a perception of conflict, with the employee’s duties or responsibilities in such a way that the employee’s ability to act in the public interest could be impaired, or the employee’s actions or conduct could undermine or compromise: • the public’s confidence in the employee’s ability to discharge work responsibilities, or • the trust that the public places in the public service. Indemnification Indemnification refers to protection from harm or cost. An indemnifying party guarantees to pay or take care of any debt, lawsuit or claim that may arise as a result of a contract or contract performance on behalf of the indemnified party. Indirect Costs Indirect costs (or overhead) are those costs that cannot be identified readily and specifically, but are nonetheless associated with a particular activity. For example, indirect costs to universities of conducting research include heat, power, administration, library and computing facilities. Copyright The exclusive right of the creator, or subsequent copyright holder, to copy, produce, reproduce perform or publish a work. Copyright exists as soon as an artistic, literary or musical work or software is created; it arises automatically when an original work is created, and does not need to be granted by any authority. This differs from patents, for example, which must be applied for and issued by federal governments. Intellectual Property Refers to intangible (non-physical) property which includes scientific or scholarly discoveries, copyright, computer software, moral rights related to copyrighted materials, trademarks, official marks, domain names, patents, industrial designs, literary, artistic, musical or visual works and know-how. Although intellectual property rights are associated with a wide range of products of the human intellect, such as training manuals, publications, map products, videos and computer software, they are distinct from the physical medium on which these products are produced. The intellectual property is the set of rights arising from the creation and development of these products. For example, if a physical book is produced, the author’s copyright in that book is the intellectual property. Data Representations of recorded information or concepts prepared in a form suitable for use. This includes, but is not limited to, technical data, computer software and computer databases. Data does not include data incidental to the administration of a contract such as financial, cost and pricing, administrative or management information. Financial Reporting Refers to the production of unaudited financial reports by the University. These reports should be a full accounting of the receipt and expenditure of the Province’s financial contribution. They should include project summary, budget variance, expenditure details, salary details, federal cost share, contributions in kind, and revenue details, if any. Intellectual Property Rights Ownership Intellectual Property rights vest with the creator(s) of that intellectual property. Those rights may be transferred to another party under contract or via university policy. Invention or Discovery Foreground Intellectual Property At the University, “invention or discovery” includes databases, audio and video tapes, films, slides and photographs, computer programs and computer-stored information or equivalent circuitry, biotechnology and Foreground intellectual property is new intellectual property that is created after the start date or effective date of a contract or agreement. RESEARCH RELATIONSHIPS 46 TOOL KIT 467 468 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS genetic engineering products and all other products of research which may be licensable. Inventions do not include traditional scholarly works such as books, lecture notes, laboratory manuals, artefacts, visual art and music. Overhead (see Indirect Costs) Patent A patent is a right granted by a national government, upon application and in exchange for a complete disclosure of an invention. The disclosure is initially a confidential disclosure to the patent office, which later becomes a non-confidential disclosure to the public at large. A patent gives the applicant the right to prevent others from making, using, or selling the claimed invention for a limited period of time. Subject to the payment of the prescribed annual fees, patents generally have a life of 20 years depending on the jurisdiction. In order to be patentable, an invention must be novel, useful and not obvious to a person skilled in the field of the invention. Know‑how Know-how is normally unwritten information that is needed to achieve a significant development, production, or use. Matching Funds Programs Numerous government provincial and federal programs exist that contribute a certain amount of research funds to the University for every dollar contributed by an industry sponsor. The largest sources of these funds are administered federally by the Natural Sciences and Engineering Research Council of Canada, and the Canadian Institutes of Health Research. Principal Investigator The individual identified by the University as the person primarily responsible for a research project. Material All findings, data, reports, documents, records and material, (both printed and electronic, including but not limited to, hard disk or diskettes), whether complete or otherwise, that have been produced, received, compiled or acquired by, or provided by or on behalf of the Province to, the University as a direct result of this Agreement, but does not include: Protected i. Client Case Files or Personal Information which could reasonably be expected to reveal the identity of clients; ii. Property owned by the University. Publication is disclosure that gives the public or third parties knowledge or details of an item of information. Publication may be made by way of speech, written materials, tape, video recording or other electronic means, drawing, photograph, printed work, or any other disclosure given or distributed. Publication does not include disclosures of information made on a confidential basis. Depositing a thesis in a library constitutes publication and may prejudice the ability to obtain a patent unless appropriate measures are taken to limit access to the thesis during the critical patent application period. At the University, a public thesis defence is considered public disclosure and may also prejudice the ability to obtain a patent. A security category assigned to documents, files or records series containing confidential and/or sensitive information. Publication Non‑Commercial Means not being able to profit financially at any time from materials, results and products (“outputs”), produced under contract between the Province and University, in the use of these outputs by the following non-commercial users and their employees: government ministries, agencies, boards and commissions; educational institutions (such as public school boards, public post-secondary institutions, community and technical institutes); and non-profit organizations (such as public libraries, charities, and other organizations created for the promotion of educational, health or social services purposes); RESEARCH RELATIONSHIPS Secret Research University facilities may not be used for secret or classified research. Results of research undertaken at the University are ultimately publishable at the discretion of the principal investigator. 47 TOOL KIT APPENDICES The University must be able to disclose the following five items related to research projects: • Name of sponsor • Title of project (non-confidential) • Award amount • Name of principle investigator • Contract period Scholarly Integrity At the University, the following policy applies as it relates to Scholarly Integrity: 1. Researchers are personally responsible for the intellectual and ethical quality of their work and must ensure that their scholarly activity (which includes teaching, research, scholarship or artistic/creative activity carried out in the course of a faculty, staff or student’s work or studies at the University and includes activities that would be appropriate for inclusion on a curriculum vitae or in an annual report to a Department Head) meets University standards. 2. Researchers involved in scholarly activity must not commit scholarly misconduct. 3. The University will investigate allegations of scholarly misconduct in a timely, impartial and accountable manner and take appropriate action, including any necessary steps to preserve evidence, when it becomes aware of allegations of scholarly misconduct. Sensitive Information Personal, confidential or protected information whose release is unauthorized i.e., information which is reasonably likely to be excepted or excluded from access under the Freedom of Information and Protection of Privacy Act. RESEARCH RELATIONSHIPS 48 TOOL KIT 469 470 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS REFERENCE DOCUMENT 10 5. Sample Sponsored Research Agreement, end of first sentence: THIS AGREEMENT: “200__” changed to “201__”. Record of Changes to the Tool Kit 1.01 (g): “Rebate” definition changed to: “means a rebate on Federal Harmonized Sales Tax applicable to the University”. The tool kit and sample agreements were first distributed in January 2008. This document records all subsequent changes made to the tool kit and sample agreements. Changes are made after they have been reviewed by and approved by representatives of the provincial government and the universities. 3.03: Changed to read: “The University is entitled to a Rebate from the Federal Government and may, therefore, charge to the Province only the non-refundable portion of Harmonized Sales Tax, as applicable to the Research Project, and as provided for within the Financial Contribution.” Changes approved March 2009 6.01(g): Defined term capitalized: “…Financial Contribution…”. Sample Sponsored Research Agreement, section 16.01 reference to “data” added as follows: “Any equipment, machinery, data or other property, provided by the Province to the University for the conduct of the Research Project under this Agreement will: ...”. 6. Sample Schedule B—Financial Contribution: Added new section 3: 3) The University will submit to the Province , a written statement of account showing: (a) the University’s legal name and address; (b) the date of the statement and a statement number for identification; (c) the calculation of the Financial Contribution being claimed, with reasonable detail of the applicable part of the Research Project completed to statement date; and (d) any other billing information reasonably requested by the Province. Reference Document 7, under item 3, changed to “defined in Appendix <6> (Glossary) of the Final Report as:” to “defined in the Glossary (Reference Document 9) as:” Updated version labeled “Version 1.2”. Changes approved September 2010 1. All documents: All headers changed from “Version 1.2 March 2009” to “Version 1.3 September 2010” 2. Tool Kit cover page: Version 1.2 changed to “Version 1.3 September 2010” 3. Tool Kit cover page: TUPC logo replaced with RUCBC logo 7. Tool Kit Page 13–16, General Service Agreement Template: 4. Tool Kit, Sample Grant Letter: first sentence replaced with the following: Weblink at the top of Page 13, updated as follows: Also available at, including optional schedules: http://www.pss.gov.bc.ca/psb/gsa/gsa_index.html We are pleased to inform you that , with you as principal investigator, has been awarded the sum of $_____ for the (the “Project”), as outlined in your proposal dated . Deleted General Service Agreement on pages 13–16 and replaced with pages 1–12 of the new government General Service Agreement available at: http://www.pss.gov.bc.ca/psb/GSA/ docs/GSA.doc. Signature block replaced with the following: Deputy Minister RESEARCH RELATIONSHIPS 8. Tool Kit Page 17–18, deleted Schedule F— Additional Terms and replaced with new Schedule F—Additional Terms: 49 TOOL KIT APPENDICES 13) the ministry executive financial officer or other designated ministry official will determine the extent of repayment with reference to the nature and severity of the situation, and record the amounts owing as a debt receivable to the government. <> 9. Reference Table, Legal Instrument: Hyperlink corrected for two web addresses in the Tool Kit reference table at www.researchrelationships.ca. 14) Refund of an overpayment is required immediately or reasonable arrangements must be made to ensure repayment in due course 10. Reference Table, Payment: Web address updated to: http://www.pss.gov.bc.ca/psb/GSA/docs/GSA.doc 15. Reference Document 2, Page 26: Deleted and updated with newest Table of Contents available at website indicated on the page: http://www.fin.gov. bc.ca/ocg/fmb/manuals/CPM/06_Procurement.htm 11. Reference Table, Goods and Services Tax: Deleted and replaced with: Harmonized Sales Tax (HST) REFERENCE Payment is all-inclusive. No separate provision for HST required. The portion of HST not recoverable by the universities is reimbursable and is specified in the Sample Agreement in Section 3. Applicable to time and materials contract. The portion of HST not recoverable by universities is reimbursable, as specified in Sample Schedule F, Section 4. Reference Document 6—Procurement Guidelines on Reimbursable HST 16. Reference Document 4, Page 28: Updated with newest weblink in header: http:// www.pss.gov.bc.ca/psb/GSA/docs/GSA.doc Deleted content of page 28 and 29, and replaced with the new Schedule B content on page 15 and 16 from the GSA master at: http://www.pss.gov. bc.ca/psb/GSA/docs/GSA.doc 17. Reference Document 5, Page 30: 12. Reference Table, Dispute Resolution, Service Contracts: Deleted and replaced with: Deleted Section 4 and replaced with the following: Parties initially attempt to resolve the dispute through collaborative negotiation. Should no amicable solution be reached within 15 business days, mediation must be used under the rules of the BC Mediator Roster Society. If not settled within 30 business days by mediation, the dispute must be resolved by arbitration. 4. All contract quotations must exclude the HST. Statements of accounts must include a calculation of fees (plus applicable taxes, such as HST) and expenses. Link updated to: http://www.fin.gov.bc.ca/ocg/fmb/ manuals/CPM/04_Expense_Mgmt.htm#439d 13. Reference Table, Dispute Resolution, Service Contracts, Reference: Deleted and replaced with: Refer to GSA Template, Section 12 18. Reference Document 6, re GST: Deleted weblink in header and content and replaced with: <> 14. Reference Document 1, last section under Repayment of a Transfer Payment: Deleted 12 and 13 and replaced with the following policy update: Repayment of a Transfer Payment 12) Where a transfer payment is paid · after the expiry of eligibility; · on the basis of fraudulent or inaccurate information; · in error; or · the recipient has not complied with the terms and conditions for the payment, RESEARCH RELATIONSHIPS 50 TOOL KIT 471 472 MISFIRE: THE 20l2 MINISTRY OF HEALTH EMPLUYMENT TERMINATIUNS AND RELATED MATTERS APPENDIX MBNEIL REPORT FINDINGS 474 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS Investigatory Process Review 2012 Investigation into Employee Conduct in the Ministry of Health Review conducted by: Marcia McNeil, Sheen Arnold McNeil December 19, 2014 List of Findings 1. I find that the Ministry should have begun its formal review of employee misconduct at the same time as, but separately from the Ministry Review. 2. I find that the inclusion of the Ministry Review Team members on the Investigation Team did not meet best practices in that the Investigation was not conducted with a suitably open mind. 3. I find that the nature of the Investigation warranted consideration of the use of an external investigator with significant experience in complex investigations. 4. I find that the initial internal disclosure of the name of at least one of the suspended employees, and the later public statements regarding the suspensions and dismissals of Ministry employees, did not meet best practices. The internal disclosure naming a suspended employee should not have occurred. Employees should know that their privacy will be respected, even if it is determined that misconduct has occurred. 5. I find that suspending the employees without pay pending investigation in this case negatively impacted the quality of responses of both the suspended employees and their co-workers. I find that if the affected employees had not been suspended without pay, the Investigation Team would have received more open responses from employees. 6. I find that the Investigation Team had adequate resources to review and understand the complex web of issues which generated its creation. 7. I find that the number of interviewers participating in employee interviews was detrimental to conducting an effective interview. APPENDICES 8. I find that the Ministry should have been aware that the Ministry Review might point to some level of employee misconduct. Had the Ministry began its formal review of the employee misconduct in concert with the Ministry Review, it is more likely that the issue of employee representation would have been addressed in accordance with the PSA’s practice. 9. I find that the interviews did not always give an adequate opportunity for employees to provide a full and fair response. 10. I find that interviewees did not have an adequate opportunity to review documents and respond to questions arising from them. 11. I find that because the employees were told that they would have an opportunity to respond to the Investigation Report and any recommendations regarding their employment, such opportunity should have been provided before a final decision regarding discipline was made. 12. I find that the decision-maker in this case would have benefited from receipt of a written analysis of the case (in the form of supporting advice, investigation report or briefing note) before making any decision. Had any of these documents been generated, some of the flaws I have found in the Investigation may have been identified before the final decisions regarding employee dismissals were made. 475 476 MISFIRE: THE 20l2 MINISTRY OF HEALTH EMPLUYMENT TERMINATIUNS AND RELATED MATTERS APPENDICES APPENDIX E DECEMBER 14, 2015: LETTER FROM HEAD OF THE PUBLIC SERVICE AGENCY REGARDING IMPLEMENTATION OF MCNEIL REPORT 477 478 MISFIRE: THE 20l2 MINISTRY OF HEALTH EMPLUYMENT TERMINATIUNS AND RELATED MATTERS _l3iu? sri Where ideas work December 14, 21115 CLIFF it 5333 The Htmourabie Michael ole long Minister of Finance and Government Ho use Leader Room 153 - Parliament Buiidings Victoria, BC you 1x4 Dear Minister de Jong: Re: Response to ministerial direction to recommend and implement actions that address MEN eil report on Health ?rings [in July lots, my predecessor, Elaine McKnight, wrote to you with an update on the Agency's implementation of the steps being taken in response to the ?ndings of Marcia McNeil report. Goyernment received a report from Marcia McNeil on December 19, 2014, that identi?ed 12 ?ndings from her review of the process that led to the dismissals in the Ministry of Health. All 12 ?ndings were accepted by the government. i am pleased to advise that as of today's date, the BC Public Service AgencyI has completed the implementation of all action items identified in response to the McNeil report. Dyerall. the Age ncy?s aim was to help gosre rn ment improve its ability to res pond by: - Improying the way ministries initially respond upon receiving a serious allegation. . Ensuring inyestigations are conducted in a manner that conforms to existing policies and best practices. I Ensuring proper decision-making processes are followed. - improving communication practices related to the inyestigation process. Please refer to the attached ap pendis for the full list of the actions completed by the EC Public Seryice Agency. If you have any questions, piease don?t hesitate to contact me. The are Public Se nrice Agency takes alIEgatio ns of Employee misconduct and i can assure you, re mains committed to ongoing and lasting improyements to how these allegatio ns are dealt with. Sincerely, Lori Halls Deputy Minister 4 - a: Public Set-nice Agency Mailing Address: Telephone: 25D 952-519-5- FD Boa DADA Sin Froy Govt Fa?lmile: 25!} 356- EUR BC El'tl'l APPENDICES Appendix Actions completedfimplemented in response to ?ndings from the Ivlarcia McNeil review: Establishment of clear Agency and ministry roles and account-abilities for investigations. A ministry must notify the Agency ofany allegation of employee misconduct prior to taking action so that the appropriate level of Agency involvement is determined before the ministry responds- All investigations of alleged serious misconduct must be led by the Agency or Agency-approved investigators. Enhanced investigation and discipline decisionrmalcing information provided on so management employees understand the process and ltnovv what to do when they are initially confronted with an issue ieg- who to call. what steps to take if there is an immediate etc}. Implementation of an investigations-specific training course for excluded managers in government. Ongoing reinforcement of existing investigation protocols of informing employees at the start of the investigation of what happens duringthe investigation, their rights. and points of contact for questions or concerns. Ongoing reinforcement of employees? entitlement to due process in an investigation. Where it is deemed necessary due to safety concerns, etc- that an employee cannot remain in the workplace while an investigation is carried out, the employee should be suspended from the workplace. Investigations are to be carried out as as possible in recognition of the impact of the suspension on the employee. lDngoing reinforcement of esisting practice of considering suspensions with pay for investigations where doing so without pay may compromise the investigation. Implementation of mandatory enhanced investigations training program for Agency investigators. Implementation of a mentor program for AgeHCy investigators that requires new investigators to be teamed up with an experienced colleague for several investigations prior to leading an investigation. Ongoing reinforcement ofei-tisting agency policy requiring that the investigative and decision-making parts of the process are kept separate and decision makers remain at arm?s length until the ?ndings have been rendered. Disciplinary decisions also must only be made afterthe investigation has been completed and labour relations andfor legal advice has been received and documented. Ls}- 4;;0 MISFIRE: THE 20l2 MINISTRY OF HEALTH EMPLUYMENT TERMINATIUNS AND RELATED MATTERS Establishment of oversight and escalation protocols for investigations that are sensitive an dr?or have potentially signi?cant outcomes- In the event ofa disagreement between a Doputy Minister and the Deputy Minister, EC Public Service Agency, regarding the investigation process or outcomes; the matter will be advanced to the Deputy Minister to the Premier. Mandatoryr education sessions provided for Deputy Ministers, Assistant Deputy Ministers and senior managers on investigations and making disciplinaryr decisions- in addition we plan to roll out these education sessions to all other excluded managers. lnternai investigation protocols updated; including assessment tools to ensure: Lead investigators on com pleitr sensitive investigations have significant experience leading progressively more challenging investigations. Investigative teams are appropriate given the nature of the investigation; conform to best practices, and continue to be adequately resourced, and; Highly specialized internal or external investigators are preferred for high- profileicontEntious cases or investigations th at are likely to involve specialized expertise or legal analysis, as per Agency policy. Development of clear and comprehensive investigation and information-sharing protocols for multi-branch, cross-government undertakings to Ensure that roles and responsibilities are clearly defined and investigations are completed in a timely fashion without unnece553ry overlap. Development and implementation of a communications and change management strategy to improve awareness ofinvostigative information, training, toolsr resources and protocols. The Agency and GCFE have completed a review of the appropriate role of communications in employee investigationsrdiscipline and establish protocols clearly defining roles, responsibilities and the appropriate timing of communication activity. The Agency completed a review of proposed amendments to the Fuoiic Service Act Regulations to clarify ministry and Agency authorities in relation to the investigation, suspension and discipline of employees and determined that changes to the regulation were not necessary. APPENDIX MINISTRY OF HEALTH ORGANIZATION CHART 482 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS MINISTRY OF HEALTH EXECUTIVE LEVEL ORGANIZATION CHART SEPTEMBER 5, 2012 Minister of Health Honourable Margaret MacDiarmid Deputy Minister Graham Whitmarsh Assistant Deputy Minister Health Authorities Barbara Korabek Chief Operating Officer And Associate Deputy Minister Chief Administrative Officer And Associate Deputy Minister Sandra Caroll Elaine McKnight Assistant Deputy Minister Medical Services & Health Human Resource Assistant Deputy Minister Financial & Corporate Services Nichola Manning Manjit Sidhu Assistant Deputy Minister Health Sector IM/IT Assistant Deputy Minister Planning & Innovation Lindsay Kislock Heather Davidson Assistant Deputy Minister Pharmaceutical Services Assistant Deputy Minister Population & Public Health Barbara Walman Arlene Paton APPENDICES Corporate Director Health Communications, GCPE Shannon Hagerman Provincial Health Officer Dr. Perry Kendall Director Executive Operations Grace Foran Content source: Ministry of Health, 2012 483 484 MISFIRE: THE 20l2 MINISTRY OF HEALTH EMPLUYMENT TERMINATIUNS AND RELATED MATTERS APPENDIX EXECUTIVE VACATION LEAVES - MINISTRY OF HEALTH 486 MISFIRE: THE 2012 MINISTRY OF HEALTH EMPLOYMENT TERMINATIONS AND RELATED MATTERS EXECUTIVE VACATION LEAVES – MINISTRY OF HEALTH AUGUST – SEPTEMBER 9, 2012* August 1 2 3 4 W T F S S M T W T 6 7 8 9 10 11 12 13 14 15 16 17 F S S M T W T T • • • • • • • • • Sandra Carroll • • • • • • • • • Elaine McKnight • • • • • • • • • Barbara Walman • • • • • • • • • • • • • • • • • • Arlene Paton • • 5 Heather Davidson Lindsay Kislock Nichola Manning * Does not include ministry executives not on vacation during this time period or those executives not involved in the matters under investigation. Does not include leaves other than vacation (e.g. absence due to illness). APPENDICES September 18 19 20 21 22 23 24 25 26 27 28 29 30 31 1 S S M T W T F S S M T W T F 2 3 4 5 6 7 8 9 S S M T W T F S S • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • Content Source: Ministry of Health Outlook Calendars 487 488 MISFIRE: THE 20l2 MINISTRY OF HEALTH EMPLUYMENT TERMINATIUNS AND RELATED MATTERS MAILING ADDRESS: Office of the Ombudsperson PO Box 9039 Stn Prov Govt Victoria BC V8W 9A5 TELEPHONE: General Inquiries Victoria: 250 387-5855 Toll Free: 1 800 567-3247 FAX: 250 387-0198 OR VISIT OUR WEBSITE AT: http://www.bcombudsperson.ca