By Andrew Bates | Telegraph-Journal
A whistleblower challenging his firing from Opportunities New Brunswick says his case exposes issues preventing whistleblowers from coming forward.
Scott Campbell, 54, of Saint John, alleges in a lawsuit he was harassed at Opportunities NB over what he called unethical behaviour and was eventually fired for making a complaint. He is now suing the provincial economic agency, as well as Montana Consulting, the HR company that investigated his claims, and is also pursuing four other actions under employment and human rights legislation.
“I think it’s near-impossible for one individual to exercise their rights,” said Campbell, who said he’s spent more than $150,000 over five years since a sequence of events in 2019, when he was a business development agent looking to connect companies to taxpayer-funded investment, which would be approved by the provincial cabinet.
“I don’t have a lot of money, I’m not a well-off person, and I just find that the public interest disclosures act is broken,” Campbell said, referring to the provincial whistleblower legislation. “Any government employee right now would have to be crazy to raise their hand … based on the last five and a half years of me trying to do the right thing.”
In December, David Mombourquette, chair of the labour and employment board, ruled that Campbell’s July 30, 2020, firing was “motivated, at least in part” by his pursuing a complaint against his former supervisors, who have since left the agency. A two-day hearing is scheduled this week to decide the penalty under the Employment Standards Act, with Campbell seeking payment of lost wages and benefits, reinstatement, damages and legal expenses.
Campbell, who had worked at Opportunities NB since 2016, is also pursuing wrongful dismissal under the Public Sector Labour Relations Act, discrimination under the Human Rights Act and harassment under the Occupational Health and Safety Act.
Brunswick News submitted a request for comment to both Opportunities NB and the provincial ministry of post-secondary education, training and labour.
ONB spokesperson Michel LeBlanc declined comment, citing the ongoing court matter.
Campbell’s lawyer Kelly VanBuskirk said Campbell’s case is “interesting” because it is covered by a number of different pieces of legislation that all work independently, so some come before court, some before the labour board, and other bodies. In other jurisdictions including the U.K., VanBuskirk said, employment legislation has been consolidated.
“He does have grounds to make all these claims, and … he does have to make them all if he wants to enforce his rights,” VanBuskirk said. “For a person whose career is not law to try to figure this out, it’s like a spider’s web … it’s not an easy process.”
Campbell alleged in an August 2019 complaint that he had been bullied by supervisors when he refused what he said were unethical directions regarding a request for support for a company interested in setting up a second headquarters in Moncton. He alleged that two supervisors in his department directed him to follow “a narrative more appealing than the facts” by changing the application.
Brunswick News is not naming the company because it was not a party to the legal action against Opportunities New Brunswick and Montana Consulting.
“There were a number of ways they were trying to make it favourable to approve the deal,” Campbell said. “I had not only a responsibility to the public, which was my highest responsibility, but I also had a responsibility to cabinet and the people who were going to be reviewing it that it was fact.”
Campbell said he went to the human resources department and was told to put the complaint in writing, which he did, preparing a document more than 100 pages long with emails and listing as many as 17 potential witnesses. On June 1, 2020, he was informed that his complaint was dismissed after an investigator from Montana Consulting hired by ONB found there was no case for harassment. The report shows that nobody except Campbell was interviewed.
Brunswick News submitted a request for comment through Montana Consulting’s lawyer that was not returned.
“How do you say you’re an investigation company and you haven’t interviewed a single witness?” Campbell said.
Scott Campbell says he was told to file a formal complaint and composed a document that was more than 100 pages long, with supporting documents, emails, and the names of as many as 17 witnesses.
Campbell insisted on pursuing his complaint, documents show, but was fired on July 30, 2020, with a letter stating that his “skill set” did not fit ONB’s needs. ONB told the board that the relevant managers had left and that Campbell’s new manager had concerns about his performance. But the labour board ruled that ONB had not documented those concerns, noting a positive performance review by the new managers on July 8, 2020.
The labour board also ruled that in dismissing the complaint, ONB failed to assess Campbell’s allegations to the appropriate standard. The ruling said that Campbell’s 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.”
In Campbell’s lawsuit, which was initially self-represented, he argues that the investigation by ONB and Montana Consulting was negligent and willfully blind, and seeks damages for “continuing disability, embarrassment, humiliation and a loss of reputation” as well as lost wages.
Montana HR has argued that the suit should be dismissed or they should be dropped as defendants, saying they owed no duty of care to Campbell. Opportunities NB argues the case should be dismissed over concerns regarding jurisdiction and notice.
That lawsuit came before Justice Darrell Stephenson on Sept. 4. when the judge set the suit off to February 2025 in order to wait for some of Campbell’s other complaints to resolve. He said he was eager to eventually write about the “absurdity” of having five concurrent matters as the courts deal with lengthy delays.
“I just came from judges meetings where we talked about the number of hearing officers we have, the backlog in family matters getting before the court,” Stephenson told the lawyers. “Mr. Campbell appears to be on a bit of a crusade, but here we have a case of, in essence, dismissal.”
The “thinness” of the Montana report gives him “concerns” about what went down, Stephenson said, but the judge added “I’m not sure where any of this gets Mr. Campbell except some money.”
Campbell acknowledged the challenge of having so many concurrent cases, saying they’ve tried and failed to combine some cases and had jurisdiction issues at the labour board.
“I agree 100 per cent. I wish it weren’t that way, but I wasn’t there when they drafted that legislation,” Campbell told Brunswick News. “I’m just looking to exercise my rights where they exist… I don’t want to tie up the court’s resources.”
He said the lawsuit was needed to target the HR company and that it has allowed him to retrieve documents, saying he asked five times for an unredacted copy of the HR report before a court order in June.
“There’s no way to avoid (the multiple cases),” VanBuskirk said, citing New Brunswick legal precedent. “Not only is it really hard to keep track of intellectually, but then there’s the time and resources required to pursue these claims.”
Campbell said there are 48,000 government employees, and he thinks they “do not feel comfortable” coming forward in a system that doesn’t protect whistleblowing, and he thinks that coming forward has hurt his own chances with future employers.
“I’m not trying to hurt anybody, I’m not trying to hurt ONB,” he said. “More globally, what I would seek is that they need to change this law, period.”
“If I could achieve that, that would be important to me. And then I can put my life back together.”
