Rosslyn whistleblower silenced by non-disclosure agreement
A year after local nurse Ashley Jenkins blew the whistle on horrific conditions at the Rosslyn Retirement Residence - losing her job in the process - she says she can't proceed with a whistleblowing complaint due to a non-disclosure agreement (NDA).
An advocate for whistleblower says NDAs serve to further silence whistleblowers and should be banned.
Jenkins, 33, a registered nurse, was hired by a temp agency in May 2020 to help bring an embattled Hamilton retirement home, the Rosslyn, into compliance after it was evacuated amid a deadly COVID outbreak. But when she realized the extent of the problems at the home, she spoke out about her concerns to an investigator with the Retirement Homes Regulatory Authority (RHRA). She reported finding expired medication, pills outside containers, no narcotic inventory sheet and bedbugs everywhere."
The RHRA stripped the Rosslyn of its licence in June 2020. Later, the regulatory body revoked licences of other facilities owned by the same family - the Martinos, who had a long history of mismanaging care homes.
In the interim, the temp agency that hired her, fired her.
Jenkins said it was because of her whistleblowing. The temp agency, Caring Hearts Healthcare Group, said it was because she failed to show up for work and due to trust issues" - not because of whistleblowing. Regardless, Jenkins said the agency still owed her upwards of $1,000 in wages. She filed a complaint with the Ontario Labour Relations Board to recoup the funds. She planned on filing a whistleblower complaint with the same body after the initial complaint was resolved.
That's no longer going to happen.
Jenkins tells The Spectator she and the temp agency went to mediation in recent weeks and reached an agreement - the details of which she can't share due to a nondisclosure agreement she signed, she said. Part of that agreement means she can't move forward with her whistleblowing complaint, she said. Such a complaint would have allowed her to formalize her case that she was wrongly fired for speaking out.
They've put her in a bottle, they've put the lid on, and that's it," said David Hutton, a senior fellow with Ryerson University's Centre for Free Expression and expert on whistleblower protections. And it only cost them cents on the dollar."
Hutton said NDAs serve to silence whistleblowers who already have little recourse.
He calls Canada - and Ontario - a wasteland" for whistleblower protections. Laws that purport to protect whistleblowers are instead riddled with gaps through which well-meaning but naive whistleblowers often fall, he says.
What is required in any jurisdiction is they need to start from scratch, developing new laws that respect best practices in other countries," Hutton said.
A March international report on whistleblowing protections in 62 countries ranked Canada last - in a tie with Lebanon and Norway. The report looked at factors such as numbers of reported whistleblower cases, success rates of whistleblower complaints, loopholes in laws and shielding whistleblower rights from gag orders."
Julie Macfarlane, a professor of law, emerita, at the University of Windsor, wants NDAs banned in Canada.
It's basically like buying people's silence," said Macfarlane, who became a whistleblower when she made public the fact that her university signed an NDA with a former colleague who was accused of sexually harassing, threatening and intimidating students.
Macfarlane said in Jenkins' situation, the gag order is stopping her from further making public wrongdoing and demanding accountability.
The province would not speak to its position on improving whistleblower protections or banning NDAs.
Asked about Jenkins' case, a spokesperson for the Ontario Labour Relations Board said applicants in Ontario Labour Relations Board proceedings are always free to enter into voluntary discussions to resolve their matters before the board - and frequently do - on whatever terms they consider appropriate or acceptable."
If applicants and respondents reach an agreement, applications are withdrawn.
Unless asked to make some particular order, the board does not monitor the contents of those private settlements nor is there any legal requirement on the parties to file those settlements with the board," the spokesperson said. Whether some previous settlement in some way bars or impacts a subsequent application is something that would have to be raised and determined in that subsequent application."
As for Jenkins, she believes whistleblowing has affected her ability to find work. For the past year, the single mom has relied on social assistance to support her two kids, she said. She suspects word got out that she's a whistleblower, and that she's been blacklisted from the caregiving industry.
Hutton isn't surprised to hear that.
Too often, whistleblowers are quietly blacklisted in an attempt to silence you and crush you and dissuade other people (from hiring you)."
There are lessons to be learned from Jenkin's case, Hutton said - specifically, the need to push for greater protections for people like her who are willing to put their jobs on the line for the greater good.
In my mind, Ashley saved a lot of people's lives - a lot," he said. Without her intervention, that (retirement) home would have been restocked with 60-some patients within a few weeks."
As for Jenkins, she still wants to prevent other would-be-whistleblowers from facing similar repercussions. Greater protections could embolden other care workers to speak out, ensuring vulnerable seniors - like those at the Rosslyn - are better protected.
As an individual and a professional, it angers me," Jenkins said of seeing so many other seniors' home residents fall victim to COVID or neglect this past year.
A recent military report detailed horrifying" conditions at two Toronto long-term-care homes, including one where more than two dozen residents died from dehydration. Feces and vomit were on the floors and walls of another home, according to the Canadian Armed Forces report.
As for what befell the residents of the Rosslyn, 64 of 66 caught COVID. Sixteen of them died. Some remained in hospital for months. Some deteriorated to the point they would need higher levels of care for the rest of their lives.
The home remains shuttered, though it may soon reopen under new ownership. The RHRA has said it intends to issue a new licence - with conditions, including that the Martinos be barred from having any control over the home - to a new applicant.
If we did have whistleblower protections in place - and it was not a grey area as much as it is - I think a lot more people would be inclined to speak out," Jenkins said.
Katrina Clarke is a Hamilton-based reporter at The Spectator. Reach her via email: katrinaclarke@thespec.com