B.C. contractor exposed to asbestos blows whistle, says government made his life a ‘nightmare’

The Vancouver Sun | TOM SANDBORN | Published on: June 15, 2017

When general contractor Don Garrett was invited to bid on plumbing work in Agassiz’s Kent Prison in 2008, he had no idea that such routine work would expose him to asbestos and touch off a nine-year battle that would cast him on the national stage as a whistleblower, make it impossible to obtain bonding, and cost him future contracts. He says the exposure to asbestos has compromised his health, and the government has made his life a “nightmare”.

Garrett, a contractor with three decades of experience, and his team reported for work on the 30-year-old maximum security Corrections facility on May 29, 2009. The job, replacing sinks and toilets, commissioned in 2008 by Public Works Canada (http://www.tpsgc-pwgsc.gc.ca/comm/index-eng.html), had already been delayed. It was expected to take until June 4, but Garrett says that the prison and Public Works imposed many delays that he only later discovered were related to asbestos.

During the first weeks after he and his crew had gained access to the prison worksite in late May of 2009, Garrett took the lead. Without using any kind of breathing mask or other protection, he removed gaskets by grinding and using a wire brush on them. The process created a lot of dust that swirled around him as he worked. He and his crew, all working without masks or other protective equipment, took in what he would later describe as “lungs full” of the toxic material.

“The tender documents made no mention of asbestos in the plumbing,” Garrett told Postmedia. “Consequently, my crew and I unknowingly exposed ourselves and others to high concentrations of asbestos while removing and rebuilding plumbing valves that contained asbestos.”

Asbestos, widely used in Canadian construction in decades past, is now known to be a carcinogen. Strict building and construction safety protocols and precautions are required when work is done on a site where asbestos exposure is possible. Asbestos can cause mesothelioma, a fatal cancer of the pleural tissue around the lungs, often occurring many years after exposure.

What Garrett didn’t know in May 2009 as he drilled into the structure of Kent Prison was that a report five years earlier had warned about the prevalence of asbestos in the building materials of the institution — and that prison guards had also raised the alarm.

The March 2004 report is titled “Asbestos Containing Material Survey Report, Kent Maximum Security Institution, Agassiz, British Columbia, Prepared for Public Works and Government Services Canada and Correctional Services Canada.”

Produced by Pottinger Gaherty Environmental Consultants, it confirms the existence of asbestos-containing materials throughout the facility at Kent, noting “once the materials have been installed they are hidden from plain view and impossible to find without dismantling the system. Therefore … abatement procedures should be exercised when this material is disturbed or removed during service work.”

The 2004 report cites Mike Cuccione as the consulting firm’s contact at Kent. Garrett says it was Cuccione who invited Garrett to bid on the 2009 work and who remained involved in the interface between Garrett’s company on one side and Kent and Public Works on the other. As someone involved in the report warning about asbestos in the prison, Garrett says, Cuccione should have known the contractor needed to be warned in advance of doing any work at Kent. Postmedia made repeated requests to Kent Prison for an interview with Cuccione, who is still involved at Kent providing on-site escort and supervision for contractors at the prison, but received no response to these requests.

Correctional officers at Kent were actively concerned about possible asbestos exposure around this time, as well. In April of 2013, Gord Robertson, then the Pacific regional president of the Union of Canadian Correctional Officers, told the CBC’s Julie Ireton: “Officers at the time were concerned their feelings of being exposed were being minimized. They felt their reporting went basically unheard.”

A WorkSafeBC report dated Aug. 31, 2009, says that Garrett first suspected asbestos exposure when he tried to purchase replacements for the gaskets he had been working on with a wire brush and was told by the supplier they were no longer available because they were made primarily of asbestos.

Although he had suspicions about asbestos exposure early on in his work at Kent, Garrett learned definitively about the existence of the 2004 report only after many years of trying without success to get the government to acknowledge that it had failed to properly warn him and his crew about asbestos dangers in the work they were contracted to perform. He had arranged for the WorkSafeBC inspection in August of 2009, and used various internal government channels, beginning with complaints to Public Works and Kent Prison during 2009 and including a complaint in 2010 to the Office of the Procurement Ombudsman, all to no avail.

He didn’t know that, by assuming a “whistleblower” role, he would face yet another overlay of problems that would presage years of procedural battles that would effectively make it impossible for him to retain bonding status and thus shut him out of further work as a contractor.

“My efforts to obtain change orders due to asbestos caused delays (in the job), which constituted a cardinal change of the contract and met with further delays, denials and cover-up from government, locally and in Ottawa,” says Garrett. “The result of this long nightmare is that my company has lost its bonding status and has been unofficially blacklisted. I was put out of business by the federal government after 30 years of contracting and, as a bonus, my lungs are loaded with asbestos.”

Garrett’s work at Kent was completed in mid-December 2009, but his claims for additional expenses created by the delays over the asbestos and a number of other issues identified by the employer are still in dispute and, eight years later, he still has not been provided with a formal notice of completion.

Because of the unresolved issues with Public Works, Garrett says, he has lost the ability to obtain bonding and thus cannot take on new contracts. He believes he is being punished for blowing the whistle about the asbestos content of the plumbing fixtures he was removing and replacing. Although Garrett and his crew were told that some of the delays they experienced were connected to concerns about traces of asbestos content in linoleum at the prison, and about possible lead paint concerns, they were not warned in advance, as required by law, of asbestos within the plumbing fixtures they were engaged to remove and replace.

Garrett had two CAT scan tests soon after he became concerned about possible asbestos damage, and was told the tests showed a spot on his lungs, but he has not followed up with further tests. He knows asbestos damage can take more than a decade to show up and he is reluctant to have more radiation exposure from diagnostics.

Contacted for comment in May, Corrections Canada spokesman Jean-Paul Lorieau did not answer specific questions about the number of federal prisons in B.C. known to have asbestos, whether there have been any reports of asbestos exposure, or even whether he could confirm asbestos exposure at Kent in 2009 or steps taken in response.

In March of 2011, Garrett filed a complaint with the Public Sector Integrity Commissioner, Mario Dion. The commissioner is mandated to intervene when public-sector workers report government misconduct and are then punished as a consequence of their whistleblowing.

After a process with the commissioner that once again saw Garrett waiting through long delays, and the appointment of three different investigators, Garrett received a letter from Dion in April of 2013, dismissing his complaint, saying: “I believe the concerns and issues raised by you and or any other parties involved in the construction project were appropriately dealt with by the proper organizations.”

In the same letter, Dion revealed the existence of the 2004 report.

The commissioner’s report effectively rejected Garrett’s complaints about his treatment by Public Works, Corrections Canada, and the Office of the Procurement Ombudsman.

Although disappointing for Garrett in his effort to have his exposure acknowledged and his whistleblowing validated, it was the Dion letter that revealed the existence of the 2004 report on asbestos exposure dangers at Kent Prison. That report should have led, Garrett argues, to Public Works and Kent informing him of the existence of the report and of these dangers before he ever started work at the prison.

A WorkSafeBC consultation document dated Feb. 20, 2014, supports Garrett’s claims about asbestos exposure and about Public Works officials not being forthcoming with the information about asbestos at the prison. The document reads, in part: “Don Garrett was not told that the gaskets contained asbestos even though the survey was conducted in 2004. In 2009, when (a WorkSafeBC inspector) visited Kent Prison, the 2004 survey was not shared with (the inspector) by Public Works.”

On Oct. 16, 2014, Garrett and his contracting company filed a civil suit in Supreme Court of B.C. in Chilliwack against the federal Minister of Public Works and Government Services, alleging breach of contract and negligence. The suit, which has not yet been resolved, asks for damages and costs.

Pierre-Alain Bujot, a spokesman for Public Works, the government body that oversees repair contracts at federal prisons, said on June 12 that his office would have no comment because the matter is currently before the courts.

As a last resort, Garrett took his concerns to Parliament this spring. In March, he testified before the House Standing Committee on Government Operations and Estimates about his experience with the Public Servants’ Integrity Commission. He testified that:

“In all of the two years trying to communicate with (the commission), I probably had less than two hours of conversation with them. They kept me in the dark nearly all the time regarding the status of my case. “

Today, the standing committee is expected to table its report on the workings of the Public Servants’ Disclosure Protection Act, which is designed to protect those who blow the whistle when governments don’t play by the rules, and which created the Integrity Commission. Garrett and critics of the way Canada deals with whistleblowers will be watching with interest to see whether the standing committee recommends significant changes.
Alan Cutler, who came to national prominence as a civil servant who revealed government misconduct in 2004 — revelations that led to the notorious “Sponsorship Scandal” (http://www.theepochtimes.com/n3/582895-whistleblowers-vilified-for-doing-the-right-thing/) — will be one of those interested observers.

“The Garrett situation is not unique,” he told The Sun at the end of May. “I know of several federal employees who were fired for whistleblowing, and lots more who were punished.”

David Hutton, a whistleblower advocate who once served on an advisory committee for the Public Sector Integrity Commission and stepped down amidst controversies resulting from his public criticism of the commission, thinks the Public Sector Employees Disclosure Act should be “completely re-written.” He also calls for the current commissioner, Joe Friday, to be replaced.

Kathleen Ruff, a critic of Canada’s past involvement in asbestos mining and who is familiar with the Garrett case, has called on the standing committee to “condemn the wrongdoing of Public Works Canada and the Office of the Public Sector Integrity Commissioner in their dealings with Garrett and call on the Canadian government to give Garrett an apology and compensation for the harm and injustice he has suffered at the government’s hands.”

She also called for a “fundamental overhaul of the Office of the Public Sector Integrity Commissioner to make it truly independent and effective.”

Ruff and other critics may have something to celebrate when the standing committee delivers its report, judging from what Erin Weir, NDP MP and committee co-chair, told Postmedia in an interview May 31.

“We’ll be proposing substantial changes to whistleblower legislation,” Weir told Postmedia. “MPs from all parties agree on this. We want whistleblower protection for contractors who work for government. Whistleblowers perform a public service.”

Committee chairwoman Liberal Yasmin Ratansi declined to comment for this story, saying through a media aide that she would have no comment until the report was issued.

Garrett thought he was performing a public service when he went public about asbestos dangers to him, his workers, guards and prisoners at Kent. It may be years, if at all, before he sees the consequences of his asbestos exposure. But, like others concerned about how whistleblowers are treated in Canada, as early as this week he will be watching for the report from Weir’s standing committee.

“I just want an end to government persecution of me and other whistleblowers,” Garrett said. “I hope I can put my life and business back together.”