The Dingwall affair is just beginning
Howard Levitt
National Post
Tuesday, February 07, 2006
I suspect that the real scandal of the David Dingwall affair remains undisclosed.
Why did both the government and Dingwall repeatedly, even adamantly, assert that Dingwall had resigned from the Mint, if he was fired? Without access to the arbitration decision, one can only surmise.
My belief is that Dingwall told the truth under oath before the standing committee and resigned just as he claimed. In that case, what the arbitrator likely found was not that Dingwall was "fired," but that he was "constructively fired." To find a constructive dismissal, the arbitrator would have had to conclude either that Dingwall was ordered to resign or that his conditions of work were so untenable that he was entitled to consider himself as having been fired -- and resign accordingly. It also may be, since parties can agree to anything before an arbitrator, that the government and Dingwall agreed on a unique definition of "fired" for purposes of this award. It is even possible, although politically risky for the Liberals, that the government consented to portions of this arbitration judgement. In light of the government's apparent anxiety from the outset to pay Dingwall severance, one can reasonably ask how hard the government defended this case and what agreed instructions the arbitrator received.
Notably, when Dingwall was questioned before the standing committee of the House and the issue of his severance entitlement was probed, he never claimed that the issue was being arbitrated. But if the agreement to arbitrate was made only later, why did the Liberal government keep it under wraps throughout the election campaign? Since the arbitration decision was released before the election but remained secret until this weekend, the Canadian public should be told who it was released to, who from the government became aware of it and, most important, why it was kept secret until after the election? Did Mr. Dingwall make any deal with the government obliging him to also keep it secret?
In Prime Minister Stephen Harper's first post-election press conference, he made clear that, based on the facts he then knew, there would be no severance payment to David Dingwall. He clearly was unaware of any ongoing arbitration case. But as soon as this arbitration decision was announced, a Harper spokesperson commented that the government would not appeal the ruling since the decision was between "two private parties." It is not.
In the interests of transparency in government, the arbitration decision should be immediately released by the government to the public and consideration given to judicially reviewing (appealing) the decision to Federal Court. If the arbitration award was legally sound but based on facts that were inaccurate and sold the taxpayer short, then consideration should be given to recovering the money from anyone complicit in that. What strikes me as particularly indecent is the fact that the money was paid out just before the government changed, making an appeal potentially moot. Who made that decision? And should the Harper government consider suing that individual or those individuals for the return of these taxpayer dollars?
If Dingwall was actually fired, the government repeatedly lied to the Canadian public and the House. In any case, while this scandal continued to bubble, why were we not informed about this private arbitration or the facts upon which it was based? The Harper government rose to power promising to prevent secret insider arrangements and bring transparency to public office. It now has its first opportunity to show that it is serious.
Howard Levitt is counsel to Lang Michener in Toronto.
