Shannex wins right to argue for secrecy of nursing-home contracts with province
A private company in Halifax has won the right to argue against the New Brunswick government releasing secret details of its nursing-home contracts.
Court of Queen's Bench Justice Terrence Morrison ruled Monday that Halifax-based Shannex can intervene in a right-to-information case brought to court by Green Party Leader David Coon.
"Shannex and its interests are at the very heart of this appeal," Morrison said.
Coon wants the court to order the province to release six contracts it has signed with Shannex, without any redaction.
Coon told reporters that with the province giving a greater role to the private sector in a range of government services, the exact terms of contracts — including dollar figures — need to be public.
"We need to know," Coon said. "How much is this actually costing the New Brunswick public? How is this money being spent? Are we getting value for money? It needs to be an open book."
Shannex operates two nursing homes in Fredericton and one each in Moncton, Riverview, Saint John, and Quispamsis. Last fall it was chosen to build a new nursing home in Miramichi.
The Liberal government of Shawn Graham signed the first agreement with Shannex in 2008.
Comparison never done
Then auditor-general Mike Ferguson recommended the province evaluate whether contracts with private companies were less expensive than the traditional community-based, non-profit, provincially subsidized model. That evaluation was never done.
Coon had expected to argue the case Monday against a government lawyer, but Shannex instead sent its lawyer to court to seek intervener status in the case.
Lawyer Ryan Burgoyne argued that releasing specific details of the contracts could hurt Shannex by giving competitors an advantage in bidding on future government projects.
"A third party could figure out Shannex's pricing information by working back," he said.
Government lawyer Allan Morgan supported the company's request to intervene. He told Morrison Shannex's arguments would "round out" the hearing.
Coon filed a request for the contracts in 2016 under the Right to Information and Protection of Privacy Act. Seniors Minister Lisa Harris released them a year ago, but with key sections blacked out.
Coon appealed that decision to then-Information commissioner Anne Bertrand, who recommended the documents be released in full. She said the information was about public money, not Shannex's money, and there was no evidence the company would be hurt.
Heading to court
But Harris refused to heed that recommendation, prompting Coon to go to court.
Shannex's application to intervene pushed back the hearing of Coon's main appeal to Feb. 27.
Coon argued against Shannex being allowed to intervene, citing Bertrand's finding that "the opportunity was there for evidence [of potential harm] to be presented and the department did not do so."
But Morrison ruled that because it was clear Shannex's business position "may" be affected by disclosure — the legal threshold — he had to give the company standing.
"I have no doubt whatsoever that Shannex has a direct interest in the subject matter of this appeal," he said. "Its release could — and I emphasize could — be damaging to the financial interests of Shannex."
The redacted information included "bed days" and per diem rates charged by Shannex, two figures that together determine what the province pays the company. It also included the number of full-time equivalent positions at the nursing homes.
Coon told reporters that even with Shannex intervening, he was confident Morrison would order the province to release unredacted versions of the contracts.
Feels thwarted by 'secrecy'
"What we're talking about is public money to fulfil the public mandate of the Department of Social Development to provide nursing home services to New Brunswickers," he said. "We're not talking about Shannex's money. We're talking about public money."
Coon said he has been stymied in several right-to-information requests to the province for details of its contracts with private companies, from what it will pay for a supply of retail cannabis to its lease of space for a tourism welcome centre.
"The secrecy this government has imposed on government operations is unprecedented," he told reporters.
Burgoyne and Morgan would not comment to reporters after the hearing.
