Appeal Court affirms Imbert's NIB chairman appointment

For a second time, a court has dismissed the challenge of social and political activist Ravi Balgobin Maharaj over a decision by Finance Minister Colm Imbert to appoint businessman Patrick Ferreira as chairman of the National Insurance Board (NIB).

On Friday, Justices of Appeal Nolan Bereaux, Peter Rajkumar and Maria Wilson dismissed Maharaj’s complaint while uploading the December 2022 decision of Justice Jacqueline Wilson.

In summary, Bereaux, who wrote the unanimous decision, said, “The trial judge was correct to dismiss the application. There is nothing in the Act which prohibits the appointment of Mr. Ferreira as chairman of the NIB. The application for judicial review is misconceived and the appeal must be dismissed.”

Later, Imbert issued a release announcing the Appeal Court’s decision.

In December, the ministry said Ferreira will continue to act as NIB's chairman until his term of office expires.

Ferreira was first appointed a government-nominated director of the NIB on November 25, 2017, for two years. He was also appointed for a further two years from January 20, 2020, and then as chairman from January 13, 2020. His term as chairman expires on January 19, 2024.

In his challenge, Maharaj sought a declaration that Ferreira’s appointment was illegal.

He also wanted the court to quash the appointment.

It was also Maharaj’s contention that Ferreira, because of his past association with business and government, could not be considered an individual defined under the National Insurance Act and should not be chairman of the NIB.

He further said he was concerned about the appointment and wanted to ensure it was lawful, valid and complied with the National Insurance Act, which sets out who is to be appointed to the board. In the case of the appointment of a chairman, that person has to be, in the opinion of the minister, independent of the Government, business and labour.

“He is of the view that the appointment is contrary to law because Mr Ferreira had served as a director on the NIBTT’s board previously during the period November, 25, 2017-January, 20, 2022 as a government-nominated director and hence cannot be said to be a person who ‘is independent of the government, business and labour’ within the meaning and intent of section 3 (2) (d) (of the act). He is therefore not eligible or fit to hold the office of chairman,” his lawsuit contended.

Bereaux clarified how the appointment process operated.

In his ruling, Bereaux said, a literal meaning of the act conveyed that the minister may appoint a person as chairman who “in his opinion” was separate and free from the control or influence of government, business and labour.

He said the act spoke of directors being appointed by the minister whom the government nominated and the reference to “associations most representative of business, labour,” he added, “must mean that the minister in appointing the directors must canvass more than one association of business and of labour.

“Indeed, he must be satisfied on reasonable grounds that the nominees are named by the respective associations ‘most representative’ of business and labour in Trinidad and Tobago.”

Bereaux said having obtained nominees, the minister must then appoint a chairman who, in his opinion, must be independent of government, business and labour.

This, the judge said, did not mean that a nominee for chairman “must have no relationship” with either of those sectors.

“The input of business, labour and government is simply to nominate them. “

“Once nominated the directors are autonomous and function on behalf of the NIB and no one else.

“On that basis alone, Mr Ferreira’s service on the NIB board as the nominee of the Government cannot taint or compromise his subsequent appointment as chairman.”

Bereaux added, “What the minister had to be satisfied with was that the appointee as chairman was at the time of his appointment, separate from the broad tri-partite interest groups represented on the board of the NIB and did not report to, was not under the control of or subject to the influence of any of them.”

He also said there was no prohibition in the act against a nominee being a businessman or in the employ of business.

He said there was no dispute on the discretion the minister had.

“There is also a wide latitude within which he can operate provided that he is fair and reasonable in his approach and the conclusions he reaches are not perverse.”

He said Imbert set out his full reasons for Ferreria’s appointment.

“Viewed objectively and dispassionately there was a proper basis for his decision.

“...It was for the appellant to show any connection to the business association of sufficient quality to indicate control or influence in this case and he has failed to do so.”

Bereaux also said that act provided a mechanism for any conflict of interest that could arise and the parameters by which a chairman can or cannot go.

"It would have been a simple matter for Parliament to have included a blanket statement prohibiting the chairman from owning a business or engaging in any form of business activity whatsoever. That it chose not to and to leave the appointment of the chairman to the minister’s discretion is unsurprising.”

Bereaux also dismissed Maharaj’s argument that Ferreira’s appointment was unreasonable.

Maharaj was represented by a team of attorneys including Anand Ramlogan, SC, Jayanti Lutchmedial, Kent Samlal, Robert Mitchell, Natasha Bisram and Vishaal Siewsaran.

Imbert was represented by Russell Martineau, SC, Jason Mootoo and Romney Thomas.