David Coon, MLA/Député

“I was disappointed but the judge made her decision, and her decision is what it is.” -David Coon

Article by: JACQUES POITRAS
Photo by: JOE MCDONALD/CBC

A private for-profit nursing-home company with plans to triple its operations in New Brunswick has won the legal right to keep details of its government contracts secret.Justice Judy Clendening says Shannex Inc. does not have to release key numbers from an agreement it signed with the provincial government to build a nursing home in Moncton.

Green Party Leader David Coon had argued in court that releasing the numbers was the only way the public could judge whether taxpayers were getting good value from the province’s contracts with Shannex.

But in her ruling, Clendening says she accepts the argument of a business consultant hired by Shannex, who concluded that making the per diem rate public would let competitors reverse-engineer the Shannex pricing formula and “match or underbid” the company. “I am satisfied that the information falls within the mandatory exceptions for disclosure,” she writes.

Coon filed a request for the contract for a Shannex home in Moncton in 2016, using the Right to Information and Protection of Privacy Act. Seniors Minister Lisa Harris released the contract 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. But Harris refused to heed that recommendation, prompting Coon to go to court.

The redacted information included “bed days” and per diems 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. Most nursing homes are community-run, not-for-profit institutions that are subsidized by the province. That allows the public to see what the funding levels are, and the same principle should apply to private-sector homes, Coon argued in court.

But Shannex responded that disclosure would help competitors and jeopardize its plans to expand its chain of nursing homes in the province. 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. It recently bid to build two other homes and says it will also bid for 10 more new homes recently announced by Premier Brian Gallant.

Coon said Thursday he was “disappointed” but the judge “made her decision, and her decision is what it is.” He said the ruling puts the onus back on Harris to justify the public value of private companies running nursing homes. He also called on Auditor-General Kim MacPherson to investigate whether public funding for private, for-profit homes makes sense.

Coon said the ruling shows that the province’s Right to Information and Protection of Privacy Act needs changes to make it easier for the public to get such information.