In the Spring of 2010, rather than risk the matter going to an open public hearing, the MHRC Executive Director Dianna Scarth, MHRC Investigator Nancy Flintoft and MHRC Board member, *Elliott Leven breached their fiduciary duties (without recourse from the Ombudsman) by allowing Leven to take part in the HRC panel despite assurances by both parties that he would not participate, resulting in further delays and difficulties. They did say "sorry". GABS
- August 31, 2009 through a reference from Workers Organization Resource, in a free telephone consult with legal counsel, Elliot Leven, I had briefly described the situation, naming all the parties involved after time (ten to fifteen minutes into the conversation) Leven then informed me that he was one of MGEU's legal counsel in the matter of the OSD-CSC union exclusion. "The Union has every right to be mad at CSC," Leven declared due to years of uncollected union dues. "But that had nothing to do with you. It's not retroactive." Furthermore, he expressed open annoyance with me: "now because of our conversation" he would have to recuse himself from the MHRC panel once my complaint came forward for review." And it seemed to really anger him that I was way over my head delving into a lawyers' world. "This (Labour Board) is not an investigation. It's a trial by paper and you blew it by not going to a lawyer!"
In anticipation of moving forward with this complaint, I sent a memo of a complete and accurate account of my lawyer-client consultation with Leven and accordingly--as member of the HRC Board of Commissioners--he would need to recuse himself from participating in any deliberation of my complaint.. Email was sent February 26, 2010 to Executive Director Scarth with copy to Investigator Flintoft.
Scarth replied the same day stating, "you may be assured that he (Leven) will not participate in any aspects of the Board processes pertaining to your complaint...the nature of which may create a reasonable apprehension of bias."
The Board met on April 7, 2010 and to everyone's [sic] surprise - Leven was in attendance. He later claimed not to remember his telephone consultation with me. And both Scarth and Flintoft said they forgot that Leven should not have been in attendance. Because of the "foul play," the decision was made to go with an independent Commission outside of Manitoba. Three months later, delegation was made to The Yukon Human Rights Commission.
YHRC's website has a Corner Gas feel to it. The website addresses issues of being short staffed, over-worked, frustrated, underpaid considering most times they're doing multiple jobs. The Executive Director works part time and not likely to be working the summer, or over a long weekend.
- A Canadian favourite, Corner Gas is a show about people living in Dog River; a great big place full of nothin' but space, who hang around the one and only town's gas station/restaurant.
- Yukon has its own unique challenges in its diversity of meeting the needs of 8 First Nations groupings and 14 tribes/clans where needs go beyond available resources.
- A 52-page MHRC Investigator's Assessment report "Assessment" (normally maximum of ten pages)
- MHRC Complaint plus attachments;
- Government's MHRC Reply plus attachments;
- My Rebuttal to the Government's Reply plus attachments;
- Gov't Rebuttal to my Rebuttal to the Gov't Reply - plus any attachments
- My Comments to the Assessment (MHRC restricted Comments to 10 pages-included -not in addition to - any attachments) to the 52 page Assessment.
Flintoft in the Assessment stated there was no real documented evidence which fairly reflects that submitted by Government defence lawyer, Robert Olson. However, the real evidence submitted by me of actual Government documents, letters and emails were either given no weight, given no reference, buried -- even deleted (as can be shown). GABS
A hearing was clearly needed to cross-examine the evidence and witnesses, including but not limited to deponent, Olson who personally signed off on the MHRC Reply in the complaint against the Government but NOT as legal counsel to the Government. Generally when a lawyer signs on behalf of its client, it would state "Rob Olson Per: Thompson Dorfman Sweatman, legal counsel for Government of MB." GABS
MHRC accepted a third party's testimony as if he had personal knowledge of the facts and information submitted in the Reply which he was giving second and third hand. Furthermore, shown through FIPPA requests to be false information. What's more, Olson does not have government signing authority. Can John Smith sign on the Government's behalf? GABS
The Likely Legal Strategy: Better that one man execute the fabricated response (while the Government had his back) than for the Government to potentially expose itself to perjury in stating the polar opposite to that said in the LRA Reply. Brilliant considering private firms and individuals are not bothered by such nuisances like FIPPA, accountability, transparency, and so on. The only trouble though with stretching the truth (so way way out) however is that it usually comes right back at ya with a -- SNAP!!
The standard practice in an HRC investigation now is to have all evidence sent out to each panel member to see if there is enough evidence to warrant going to hearing. This is not to be a decision on the complaint - just a determination on the information presented. Two weeks is the standard amount of time required to review, interpret, and sift through the most critical and relevant issues. Notes are taken in preparation of the day's session(s).
In addition, the parties need to be given notice of, and mutually agree upon a date, time, and location. Dietary restrictions and food preferences ("Traditional", "Aboriginal", "Yukon / First Nations" or "Champagne-Aishihik") need to be respectfully considered.
And then, one day ... at band camp...
The Yukon accepted delegation on Wednesday, July 28, 2010 and somehow managed to take care of all of the above, and have the dictated notes transcribed, typed up, scanned, emailed and mailed out to me on Tuesday August 3, 2010; the first day back to work after the long weekend. GABS
So incredible, that I brought this (along with other issues of procedural wrongdoings to Ombudsman Investigator, Kris Ramchandar saying "What? Did they decide to get together over a case of beer over the long weekend to see who gets to use the rubber stamp?" Ramchandar laughed.
After a two year stonewalling job, this was not acceptable. At the very least, I wanted to know by what authority the secretary had, to sign such an important document beyond what was given, "she has the authority". I insisted that YHRC Executive Director send a properly signed letter with the reasons for dismissal. My email was returned 'blocked' by YHRC. Instead, a response of "Good Grief!" came by way of YHRC legal counsel, advising that "since the Yukon was outside MB, the YHRC was under no obligation to respond". GABS
Although the conduct of the MHRC and YHRC has been brought forward in a formal complaint personally handed to Ombudsman Irene Hamilton on October 4, 2010 at the legislative office, and in the presence of MLA Dr. Jon Gerrard; and the Ombudsman is mandated to respond within 90 days, communications with the Ombudsman Office stopped March 2011. As to further assistance from Dr. Gerrard, other than when he called asking for my support days prior to the election, she has heard nothing further from her MLA.
Tip to Government: When you take a leave of your senses don't leave a forwarding address.
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