Province scrambles to fix legal 'gap' affecting vulnerable children
Legislation adopted last fall mistakenly repealed child-custody provisions of existing law
Dozens of vulnerable children from abusive and neglectful homes find themselves in a legal void thanks to an error in legislation adopted by the Higgs government last December.
The mistake — the omission of a single line from the bill — has left provincial legal officials scrambling to sort through how to avoid the reversal of child protection orders issued by the courts between Dec. 13 and Jan. 25.
"The government is working diligently to ensure no actions taken during the gap period are invalid or overturned," said a press release issued Friday.
It says the government will introduce legislation to retroactively fix the error when MLAs resume the session in March.
Attorney General Ted Flemming said in a statement no children were negatively affected during the 43-day legal gap created by the mistake.
"New Brunswickers can remain confident that protecting children is of paramount importance and that the safety of vulnerable children has been maintained," he said.
Social
Development Minister Jill Green introduced amendments in the
legislature last October that were studied by a committee of MLAs for
four hours before finally winning approval and getting royal assent on
Dec. 13. (Jacques Poitras/CBC)
"As soon as the department became aware of the error, we acted to have it corrected."
The law allows the province to take custody of children at risk.
Social Development Minister Jill Green, who introduced the flawed bill, did not immediately respond to an interview request Friday afternoon. A spokesperson for Flemming said he was not available.
Cabinet proclaimed the new Child and Youth Well-Being Act at midnight on Thursday to close the legal void.
The act was approved by the legislature in June 2022 but left unproclaimed — not put into legal effect by cabinet order — so that officials could make changes to it.
Green introduced amendments in the legislature last October that were studied by a committee of MLAs for four hours before finally winning approval and getting royal assent on Dec. 13.
No one — including officials from Green's department, government lawyers who drafted the changes and MLAs who debated them — noticed that the fall 2023 amendments carried no timeline for proclamation by cabinet.
That meant that by default, they took effect immediately after royal assent on Dec. 13.
Green
Party Leader David Coon said it’s not the first time a Higgs government
bill has included flaws that needed to be fixed later. (Shane Fowler/CBC)
As a result, provisions repealing large sections of the existing Family Services Act kicked in right away — without the passed-but-still-not-proclaimed 2022 law being on the books to replace those sections.
"This resulted in no legislative child protection or adoption provisions being in force during this time," Friday's release said.
During committee study of the amendments last November, Green said she was "disappointed" by suggestions from opposition MLAs that they were rushed.
She said more than 300 departmental employees took part in 17 in-person and 37 virtual engagement sessions about the bill and its regulations.
Green Party Leader David Coon said it's not the first time a Higgs government bill has included flaws that needed to be fixed later.
He acknowledged opposition MLAs who debated the amendments also let the omission go by but said that's in part because the legislature's rules don't allow the calling of expert witnesses on most legislation.
In
November 2022, then Social Development minister Dorothy Shephard had to
legislate new timelines for child protection cases to address major
delays in court hearings. (CBC)
"You're left to the non-expert eyes of MLAs without any professional input," said Coon.
It's not clear who finally noticed the flaw in the legislation, but Green said in the press release that Thursday's midnight proclamation of the new act was earlier than planned.
Now that it is in place, the province could face the prospect of dozens of legal challenges to child protection orders issued during the gap period.
An assistant to Court of King's Bench Chief Justice Tracey DeWare said in an email that she was "aware of the issues surrounding the coming into force of the Child Youth and Well-Being Act" but the assistant referred questions to the Department of Justice.
The new law modernizes the province's approach to child custody cases and adoption, including, the government says, more flexible court procedures and allowing children to be placed in the homes of relatives or people they know in their community.
It's not the first time the law's development has needed a fix.
In November 2022, then Social Development minister Dorothy Shephard had to legislate new timelines for child protection cases to address major delays in court hearings.
The new timelines were in the 2022 Child and Youth Well-Being Act but because its proclamation was being delayed, the existing Family Services Act had to be changed to also include the timelines.
The new timeline of 90 days for hearing custody cases was established after DeWare issued a directive to prioritize such cases.
She said court backlogs were preventing the cases from being heard within the previous requirement of 30 days.
ABOUT THE AUTHOR
Agency employee fired over complaint alleging falsified information, board rules
Decision says Opportunities New Brunswick dismissed employee over claim of 'unethical' actions
A former employee of Opportunities New Brunswick was fired because he filed a complaint alleging that his bosses gave "unethical directions" and falsified information in a government document, according to a recent labour ruling.
The New Brunswick Employment and Labour Board found a link between Scott Campbell's official complaint against two senior ONB executives and his subsequent firing.
Campbell told the board one of the two executives, a vice-president, abused his authority and harassed him when he objected to a memorandum to cabinet that included a reference that he considered "improper."
The vice-president of investment attraction at ONB "asked Mr. Campbell and a coworker if they had a problem with this inclusion," Campbell told the board, according to its ruling.
"When Mr. Campbell replied yes, the VPIA became angry and said, 'I think we're going to have a problem with this' and 'something's going to happen here.'"
The Dec. 21, 2023, labour board ruling does not reach a conclusion about whether the allegation of falsified information is true. There has been no ruling in a separate lawsuit by Campbell in which he makes the same claim.
Internal review ordered
In that lawsuit, Campbell identities the former vice-president as Jean-Paul Robicheau and the former director as Mark Cormier.
Robicheau turned down an interview request.
"My only comment is that these are frivolous claims," he said in a LinkedIn message. Cormier did not respond to a request for comment.
In a statement to CBC News, ONB's CEO Traci Simmons said Campbell's allegation "prompted an internal review and it was determined there was no impropriety.
"We are confident falsified information did not reach cabinet and decisions were not made premised on false information."
ONB's mandate includes investment attraction — the recruiting of companies to set up operations in the province using subsidies such as payroll rebates.
Comments about 360Insights: lawsuit
According to the lawsuit, the discussion was about 360Insights, a company that opened an office in Moncton in 2019 thanks in part to $2.1 million in payroll rebates from Opportunities New Brunswick.
ONB said at the time the company would be hiring more than 200 people.
Documents filed in the lawsuit show Campbell disagreed with Robicheau about how the project was described when cabinet was asked to approve funding, including how quickly 360Insights would create jobs and what the salaries would be.
In an affidavit, Campbell says he objected to "the provision of inaccurate information to the Government of New Brunswick which represented probable harm to the public."
Campbell claims he disagreed with Robicheau's instruction that he call the company a "shared services" provider in the memorandum to cabinet.
He quotes Robicheau telling him that ministers would "understand what that means. … We want them to see this as a huge growth opportunity."
Both men left ONB
360Insights CEO Jason Atkins did not respond to an interview request.
Robicheau left ONB in 2020 and Cormier left in 2022, according to their LinkedIn profiles.
The board ruled that an outside human resources firm didn't fully investigate Campbell's complaint, which he made under the province's Respectful Workplace Policy.
The board concluded there was "an evidentiary nexus" between Campbell's 2019 complaint and his firing in July 2020.
Campbell made the complaint "in good faith and … had a positive obligation to bring his concerns forward based on the terms of his employment contract," the board said.
"The ONB Complaint was not a vague list of general concerns about a manager. It set out very detailed and specific allegations of misconduct by two senior managers within ONB, supported by documentation."
Act protects employees
The province's Employment Standards Act says an employer can't fire or discipline an employee for "the giving of information or evidence" of a violation of provincial or federal law.
Opportunities New Brunswick was created by the Brian Gallant government in 2015 as the province's lead economic development agency.
Campbell was hired by ONB in 2016 as a business development executive working in investment attraction.
ONB denied that he was fired because of his complaint, arguing that it was about his job performance, including being late for work, not responding to calls and emails and not being in the office.
Campbell filed the complaint in August 2019, claiming Robicheau and Cormier violated the province's Respectful Workplace Policy "by engaging in harassment, vulgar language, intimidation, and abuse of authority."
ONB hired Montana HR, a consulting firm, in January 2020 to examine Campbell's complaint.
ONB dismissed Campbell's complaint
Based on its report, the agency dismissed the complaint, despite Montana not interviewing the two executives or 17 potential witnesses Campbell suggested.
Campbell was told in a performance review on July 8, 2020, that he was making a "good contribution" to ONB, but was then fired at the end of that month without warning.
Steve Milbury, who became Campbell's boss in 2019, told the board that Campbell's behaviour was "weird."
Milbury said he was "frustrated that Mr. Campbell was always talking about his complaints during working hours," even though Robicheau had left ONB and Cormier was no longer his boss.
A Europe-based consultant had trouble contacting Campbell, and at one point a government department told ONB they didn't want him in their office again because of the way he acted, Milbury told the board.
"None of the things I was trying to do worked, he was not responding," he said, according to the ruling. "I told myself I can't afford to spend more time on this."
Milbury "stated that he lost the ability to trust Mr. Campbell with clients," the board said.
The ruling says the employment and labour board will decide on a remedy for Campbell if he and ONB can't reach an agreement.
Campbell told CBC News the firing has left him near bankruptcy but he would continue to press his claims.
"I was simply doing what any public servant should do, or is obligated to do."
ABOUT THE AUTHOR
No comments:
Post a Comment