Editorial: Money wasted on legal costs fighting whistleblower

As a new report reveals Ontario cities’ spending habits on legal services, the City of Cornwall provides a good example of how municipalities waste money on litigation.

The Cornwall case involved city employee Diane Shay, a health and safety officer who reported an incident of abuse at a nursing home to the province in 2008 after her manager told her not to get involved.

The home’s administrator ended up informing the province about the abuse as well, but Shay faced discipline and eventually lost her job.

The province took the city to task for the treatment of Shay by laying charges under its whistleblower provisions.

The city pleaded guilty last month and, as a result, faced a $19,000 fine.
According to a report in the Cornwall Standard Freeholder, the charges under the Homes for the Aged and Rest Homes Act cost $190,000 in lawyer fees.

At the same time, a civil suit by Shay led to costs of $19,000. Shay, meanwhile, is now working for the city again.

The case comes as the Ontario Municipal Benchmarking Initiative released new data on cities’ legal spending habits. The results were fairly positive.

In fact, the study showed that the median legal cost per $1,000 in municipal operating and capital expenditures decreased to $2.79 in 2010 from $3.05 in 2008.

At the same time, while costs for external counsel rose during that period, the 12 municipalities studied reduced median legal operating costs per in-house lawyer hour to $127 last year from $141 in 2008.

It’s good to see that cities are having some success in restraining their legal budgets, but the Cornwall case shows how some municipalities waste money on fruitless litigation that’s contrary to the public interest.

While the city may have a plausible argument that the nursing home abuse wasn’t Shay’s responsibility to report, the initial indications that management wasn’t going to do anything about the case show exactly why she had every justification to act.

That’s what whistleblower legislation is for. For the city to then intimidate and discipline her for her actions provides further proof of the need for strong protections. Thankfully, the province took action in this case.

The case comes around the same time the Toronto Star ran a series on nursing home abuse. It found that despite recent legal changes, nursing homes continue to lag on reporting such incidents.

While governments in this country may love using the cloak of confidentiality provisions to prevent reporting of information that makes them look bad, given the aging of our population and the resulting pressures on service providers, we need more, not less, disclosure of these types of cases.

Regardless of the chains of command and reporting structures that employers would like people such as Shay to follow, it’s in the public interest to deal with abuse cases.

It’s even more important that we do so without wasting public money on legal costs stemming from efforts to shut down whistleblowers.
— Glenn Kauth

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