HomeMy WebLinkAboutP-2010-0759 Doyle.17-07-14 Decision
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Commission des griefs de la fonction publique
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PSGB#2010-0759, P-2010-0760
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE OF ONTARIO ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Doyle Complainant - and - The Crown in Right of Ontario (Ministry of Municipal Affairs) Employer
BEFORE Kathleen G. O’Neil Chair
FOR THE COMPLAINANT
Victor Doyle
FOR THE EMPLOYER Roslyn Baichoo
Treasury Board Secretariat
Legal Services Branch Counsel
HEARING
CONFERENCE CALL COMPLETED SUBMISSIONS
January 16, 17, 2017
February 24, 2017 April 25, 2017
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Decision
[1] This decision deals primarily with preliminary objections raised by the employer
in respect of the complaints of Victor Doyle, a senior planner with the Ministry of
Municipal Affairs and Housing. The complaints arise from a series of events leading
up to and following a finding by his Ethics Executive on February 8, 2010 that a
conflict of interest had arisen from his public dissemination of submissions to a
government consultation on land use policy in Simcoe County. A reassignment
followed, as well as a direction that he seek his Deputy Minister’s direction before
publicly expressing his views on land use planning. Mr. Doyle objects to the findings
against him and his reassignment, claiming reprisal for the reporting of wrong doing
as well.
[2] The employer asks that the complaints be dismissed without a hearing on their
merits. There are two complaints, one in reference to terms and conditions of
employment and discipline, filed on Form 1, and the other in respect of reprisal for
the disclosure of wrongdoing, filed on Form 1A. For the Form 1 complaint, the basis
of the preliminary objection is that it was not referred to the Board within the 14 day
time period allowed by regulation after the close of the prescribed dispute resolution
period and that the Board has no jurisdiction over the issuing of a declaration of
conflict of interest. For the complaint filed on Form 1A, the employer’s objection is
that the complaint of reprisal is not viable as the actions said to constitute a reprisal
occurred prior to the disclosure of wrongdoing. The complainant asks that his
complaints be allowed to proceed as the matters involved are of very high public
interest, submitting that the employer’s motion is a blatant attempt to avoid
accountability. Further, as the employer agreed to several years of adjournments
while an investigation by the Integrity Commissioner into related events proceeded,
Mr. Doyle is of the view that the time for preliminary motions is long past.
[3] Issues relating to requests for disclosure by two newspapers are dealt with in
this decision as well. These raise issues about the appropriate use of information
potentially relevant to the dispute, but which raise privacy issues, mostly in respect
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of the investigation by the Integrity Commissioner of events which are also relevant
to these complaints.
[4] An earlier procedural ruling as to transcribing the hearing is also recorded
below.
Factual context
[5] On a motion such as this, the Board assumes that the facts asserted by the
complainant concerning the merits of the complaint are true and provable, although
if the matter went on to a full hearing, the evidence might establish otherwise. In this
particular case, there is not much dispute about the facts asserted by the
complainant and set out in summary form below; it is largely the legal conclusions
flowing from them over which the parties differ. The largest disagreement between
the parties centres on the question of whether the restrictions placed on the scope of
Mr. Doyle’s work and his reassignment after the finding of conflict of interest by his
Ethics Executive were disciplinary.
[6] Mr. Doyle is a registered professional planner who served for more than 25
years as the leading Ministry planner for the most populous area of Ontario, known
as the Greater Golden Horseshoe. This area, which centres on Toronto, lies at the
western end of Lake Ontario, stretching south to Lake Erie and north to Georgian
Bay. He was the lead planner of significant land use initiatives, including the
Greenbelt Plan, and designer of the Oak Ridges Moraine Conservation Plan and
Growth Plan and the Lake Simcoe Protection Plan. As well, he led the
establishment of the Municipal Services office – Central Ontario Community
Planning unit. As its Manager, he was responsible for overseeing the approval of
municipal official plan proposals to convert farmland for urban expansion purposes,
including leading provincial opposition to various urban expansion proposals in
major hearings before the Ontario Municipal Board.
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[7] In his work, Mr. Doyle identified what he described as “a serious disconnect
between land use approvals that had occurred in Simcoe County and the ability to
provide sewer and water servicing” and in particular the lack of capacity in Lake
Simcoe to assimilate the sewage effluent from this approved growth. As a result of
this, his office led an award winning initiative known as the Inter-Governmental
Action Plan for Simcoe, Barrie and Orillia, which led to the Lake Simcoe Protection
Plan in June 2009.
[8] Key to this dispute is the fact that, beginning in 2003, despite the above
background and duties, and no issue being taken with his work performance, Mr.
Doyle was restricted by Ministry executives from working on a single file in the
County of Simcoe, a restriction to which he objected without success. From August
2004 to May 2005, he was seconded to work on the Greenbelt Plan, and upon his
return, assumed all his former geographic responsibility except for the same single
file. In December 2005, he was further restricted from conducting any of his
assigned responsibilities for all of Simcoe County, despite retaining all
responsibilities for the rest of the central planning area of the province. Despite his
contesting these further restrictions, they remained, but he was still asked to prepare
draft witness statements for an Ontario Municipal Board hearing where the Ministry
would be opposing the single file, together with another major file in Simcoe County.
[9] In June 2009, the Ministry of Public Infrastructure and Renewal released a
discussion paper entitled “Simcoe Area: Strategic Vision for Growth (the “Simcoe
Strategy”) and invited comments from the public as part of a formal consultation
process. On September 26, 2009, Mr. Doyle made a submission on the “Simcoe
Strategy” as a private citizen in response to this request for public input. After the
Toronto Star ran several articles in December 2009 on the submission he had made,
Mr. Doyle met with senior executives of the Ministry at their request to discuss them.
He advised that he had made the submission as a private citizen given that he had
been restricted from working in Simcoe County in conducting his responsibilities as
Manager of Community Planning and Development for Central Ontario, and thus
was availing himself of his rights to provide input in response to a public request by
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the Government of Ontario for comments. He expressed his view at that time that
this restriction was inappropriate, and had resulted in a vacuum of experienced,
professional advice being provided to the Ministry, thus undermining 50 years of
provincial planning in the region.
[10] The above-noted finding of conflict of interest by Mr. Doyle’s Ethics Executive,
the Deputy Minister, followed on February 8, 2010, as a result of which Mr. Doyle
was permanently reassigned to the Provincial Policy Planning Branch, without being
provided with an opportunity to explain or defend his actions to the Deputy Minister.
He reported to the new position but registered his disagreement with the process
and finding of conflict of interest.
[11] On February 21, 2010, Mr. Doyle wrote his Deputy Minister, giving notice
pursuant to Section 8 of Ontario Regulation 378/07 of his intention to file a complaint
to the effect that there was no adequate process leading to the finding of conflict of
interest and directions and that he did not concur with the rationale for or basis of the
finding. A meeting followed on March 4, 2010 to discuss the issues, and on April 8,
2010 the Acting Deputy Minister who had met with him at the March 4 meeting,
wrote him confirming the finding of conflict. Two further meetings followed on April 9
and 14, 2010.
[12] On April 27, 2010, Mr. Doyle submitted a Disclosure of Wrong Doing to the
Office of the Integrity Commissioner (OIC) pursuant to Part VI of the Public Services
of Ontario Act, 2006, (PSOA) followed by submission of a Disclosure of Wrongdoing
Form to the OIC on May 20, 2010, alleging that he was wrongly restricted from
carrying out his responsibilities as a result of inappropriate influence on the Ontario
Public Service by development interests in pursuit of their own pecuniary interests.
[13] On May 31, 2010 Mr. Doyle submitted a two-part application to the Public
Service Grievance Board (PSGB) based on his view that the finding of conflict of
interest by his Ethics Executive constituted disciplinary action and that the process
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for the finding was not appropriate or fair. This was followed by the submission of
revised applications on June 15, 2010.
[14] The parties unsuccessfully attempted mediation on a number of occasions, and
repeatedly consented to the adjournment of the complaints before this Board to
allow for attempts to deal with the matter internally, and for the process of the
Integrity Commissioner to unfold. When the matter remained unresolved after the
conclusion of the Integrity Commissioner’s process, these complaints were brought
back on for hearing.
Excerpts from Statute, Regulations and the Rules of the Board and Case Citations
[15] Relevant provisions of statute, regulations and Rules of the Board are attached
as Appendix A for ease of reference. Citations of case law referred to in in the
parties’ submissions are to be found in Appendix B.
Procedural Issue – Transcription of the hearing
[16] Prior to the hearing of the preliminary motions, Mr. Doyle asked to have the
proceedings professionally transcribed, at his own expense, to which the employer
objected. Argument was heard by teleconference, during which the employer relied
on case law drawn mostly from arbitration between unions and management, set out
in Appendix 2. In denying the request, the Board commented as follows:
The Board accepts Mr. Doyle’s argument that his complaints are factually and legally distinguishable from those in the cases cited by the employer. Nonetheless, the broader concern for not adding an element of expensive
formality to the Board’s proceedings is analogous to the adjudicative
contexts dealt with in the case law cited. Despite the fact that the Board deals with many matters that concern issues important to the public interest, transcription has not to date been part of the Board’s usual practice. Further, the Board is not of the view that Mr. Doyle’s complaints
are sufficiently exceptional to warrant a departure from its practice of
proceeding without formal transcription and the creation of transcripts. Notetaking is the usual manner for the parties and the Board to keep track of the evidence and arguments. In this case, there is also now already a significant body of factual and legal submissions in writing. As well, there
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is no issue of accommodating a special need of any of the participants that would warrant a change in practice in this case.
[17] Mr. Doyle also makes reference to s. 10 (1)(e) of the Board’s rules which
indicates that the Board shall compile a record of the proceedings which includes the
transcript, if any, of the oral evidence given at the hearing. Although Mr. Doyle is
correct that this indicates that the Board’s rules thus contemplate the existence of a
transcript, and in appropriate cases, the Board may permit transcription, this does
not change the rationale for the Board’s ruling in the circumstances of this case.
The rule closely tracks section 20 of The Statutory Powers and Procedures Act,
which covers a wide variety of tribunals and statutory decision makers.
Preliminary Objections - Considerations and Conclusions
[18] The issue to be decided in response to the employer’s preliminary objections is
whether Mr. Doyle’s complaint should proceed to a hearing on the merits. The
employer’s preliminary objection makes three claims, the first two of which are of a
jurisdictional nature: a) that the complaint was filed too late; b) that the Board has no
jurisdiction to rule on what is essentially a matter of conflict of interest; and c) that
the complaint of reprisal for reporting of wrongdoing does not make out a viable case
because of the sequence of events of which Mr. Doyle complains.
a) Was the Form 1 Terms and Conditions complaint referred to the Board too late?
[19] The Board only has the powers granted by The Public Service of Ontario Act,
(PSOA) and regulations made under that legislation, such as Regulation 378/07.
That regulation sets out a very specific set of time lines or “windows” of time in which
steps must be taken to file complaints about discipline or terms and conditions of
employment. In addition to complaints subject to the timelines set out in that
regulation, the Board has jurisdiction over complaints concerning reprisals for
political activity and disclosure of wrongdoing, as set out in Parts V and VI of PSOA,
which are not subject to the same time restrictions.
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[20] Mr. Doyle filed complaints under both streams. For the more general stream,
which deals with complaints concerning terms and condition of employment,
preconditions set out in Regulation 378/07, s. 4(1) must be complied with in order for
the Board to have jurisdiction. One of these is a fourteen day time limit for giving
notice to the Deputy Minister, found in s. 8(4), para. 2 of that regulation. By way of a
letter dated February 8, 2010, Mr. Doyle received notice of the employer’s finding of
conflict of interest, and gave notice to the deputy minister that he proposed to file a
complaint to contest it by letter dated February 21, 2010. There is no issue about
the timeliness of the notice to the Deputy Minister. It is the filing with the Board to
which the employer objects.
[21] Once a notice of proposal is made to the Deputy Minister, the regulation
provides a dispute resolution period before the complainant is entitled to file a
complaint with the Board for mediation and/or arbitration. A complaint will be
untimely in the sense of being too early if it is filed before that dispute resolution
period has expired, and too late if it is filed more than fourteen days after the dispute
resolution has expired. The end of the dispute resolution period is measured in
different ways, depending on whether there is a meeting with the deputy minister (or
delegate) within 30 days after receipt of the complainant’s notice of proposal to file a
complaint. If there is no meeting within those 30 days, the dispute resolution period
expires 30 days after the notice of proposal is given to the Deputy Minister [section
9(5) of regulation 378/07]. Mr. Doyle gave that notice on February 21, 2010 in this
case, so, if there had been no meeting within the 30 days, the end of the dispute
resolution would have been March 23, 2010. However, if there is a meeting
between the complainant and the Deputy Minister or delegate within those same
thirty days, the end of the period of dispute resolution is changed to the earlier of the
day that is 30 days after the meeting, or the day on which the deputy minister gives
written notice to the complainant of his or her decision about the proposed
complaint.
[22] In this case, there was a meeting with the Deputy Minister’s delegate on March
4, 2010, which was within the 30 days after Mr. Doyle gave notice of his proposal to
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file a complaint. Thus, by operation of section 9(3) of the regulation, the end of the
period of dispute resolution became the earlier of 30 days after that meeting, which
would have been April 3, 2010, or the day on which the deputy minister gives written
notice to the complainant of his or her decision about the proposed complaint, which
was April 8, 2010. Since April 3 is earlier than April 8, the dispute resolution period
for the terms and condition complaint ended on April 3, 2010. Mr. Doyle then had
fourteen days to refer the complaint to the Board, pursuant to s. 10 of the regulation,
or until April 17, 2010.
[23] Mr. Doyle first faxed his complaint to the Board on May 30 and then in a fuller
manner on June 15, 2010. For the employer, that is the end of the matter for the
terms and conditions complaint, as either date is beyond the requirement of section
10 of the regulation. This is in the context of the fact that, section 4.(1) of the
regulation provides compliance with section 10 as one of the pre-conditions for a
public servant to be in a position to file a complaint with this Board.
[24] Mr. Doyle does not agree, arguing generally that the time for preliminary
motions is long past, and that his case is unique, so that the existing jurisprudence
does not inform the present case in any meaningful way. Given the importance of
the issues raised by his complaint, Mr. Doyle finds the employer’s efforts to have his
case dismissed on a technicality to be an effort to avoid accountability for actions
which have seriously impacted his career, with no transparency or rationale as to the
method or the basis for the employer’s actions.
[25] More specifically, as to the regulatory time lines, Mr. Doyle relies on the fact
that the employer met with him twice after the April 8, 2010 letter. He submits that
the agreement by the employer to meet twice subsequent to the April 8 letter
effectively extended the dispute resolution process, and required a further letter from
the employer to give proper notice that the dispute resolution period had ended.
Further, it made it reasonable to expect that a final letter would be provided to him.
In Mr. Doyle’s view, in the absence of such a letter, a complainant would not know
when the 14-day clock started ticking, with the perverse effect that while agreeing to
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meet with him, the employer has in its own mind triggered the 14-day clock. He finds
this unseemly, and extremely prejudicial to himself as a complainant, as he
legitimately felt the dispute resolution process was continuing. Mr. Doyle submits
that it is clearly not fair for the employer to rely on the date of the decision letter to
render the filing of his complaint of no effect, on the basis of lack of timeliness, when
it agreed after the letter to meet again to discuss resolving the matter. As well, he
submits that the employer’s failure to provide a final letter is not in keeping with the
requirements of the regulation, or with the spirit and intent of the PSOA.
[26] Mr. Doyle notes that in the absence of a letter after the final meeting, a
complainant would never know if the results of the meeting had the effect of
changing the Deputy’s position or finding and thus would leave the complainant in
limbo as to whether to proceed to the PSGB. In the face of the uncertainty created
by the employer’s actions in this case, he proceeded to the PSGB, but would have
done so earlier if he had not thought the dispute resolution period was ongoing.
[27] As such, with respect to the timeliness of the Form 1 complaint, Mr. Doyle’s
submission is that by its failure to provide a written notice of its position subsequent
to the last dispute resolution meeting of April 14, the Employer never completed its
obligations under the Regulation in relation to the required dispute resolution period.
Thus, in Mr. Doyle’s view, the time frame for the expiry of the dispute resolution
period was never triggered. In the circumstances, the Board is urged to find that the
complaint is properly before this Board. Further, Mr. Doyle urges the Board to find
that there is enough of a grey area in regards to the situation that the circumstances
should be interpreted in his favour.
[28] Despite Mr. Doyle’s articulate arguments, it is the Board’s conclusion that the
dispute resolution period did expire more than 14 days before he filled his Form 1,
and that it does not have the power to extend the time limits to allow the hearing of
the terms and conditions complaint on its merits.
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[29] The meetings between Mr. Doyle and Ministry executives after the Deputy
Minister’s letter confirming the finding of conflict of interest do not extend the dispute
resolution period for the purposes of the regulation, because of the wording of s.
9(3). That wording prescribes that the dispute resolution period ends on the earlier
of the day which is 30 days after the meeting, or the day the deputy minister gives
written notice to the complainant of the decision about the proposed complaint. The
regulation does not contemplate multiple decision letters, and its wording provides a
definite end to the dispute resolution period once the decision of the deputy minister
is given. The fact that parties to complaints before this Board often continue to
attempt to resolve issues after the end of the dispute resolution period defined in the
regulation does not alter the operation of the regulatory time lines. Although it would
have been open to the parties to agree to extend the dispute resolution period with
the consent of the Board, as provided in section 4 (1) of the Statutory Power
Procedures Act, there is no evidence of such an agreement between the parties.
[30] Further, the fact that this matter was adjourned on consent for several years
while the Integrity Commissioner’s process unfolded does not make it too late for the
employer to bring the preliminary objection, given the wording of the regulation, as it
raises a matter going to the jurisdiction of the Board to entertain the complaint.
Further, the employer put Mr. Doyle on notice early on in the proceedings that it
reserved its rights to bring a preliminary objection. The Board leaves for another day
whether some other fact situation would warrant a finding that the employer was
estopped from relying on the regulation.
[31] The present case is quite similar in structure to that of Telford v Ontario
(Finance), P-2015-1619, 2016 CanLII 36364 (ON PSGB) (O’Neil). This decision is
subject to an application for judicial review which has not yet been heard, but it is a
very recent summary of the Board’s jurisprudence on the subject. In that decision,
the Board found as follows at paras. 32 and ff., in a passage which is equally
applicable to this complaint:
Prior to the current regulation, during the period when Regulation 977, set out in the Appendix to this decision, was in effect, the Board had the
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discretionary power under s. 54 of that Regulation to extend time limits, and exercised that discretion in appropriate cases. What was considered appropriate depended on the facts, including whether the delay was not too extensive, there were reasonable grounds for the delay and/or no prejudice to the other party. This was similar to the power provided in s.
48(16) of the Labour Relations Act (LRA), which gives an arbitrator under a collective agreement the power to extend time lines where there are reasonable grounds for the extension and the opposite party will not be substantially prejudiced by the extension, unless the parties agree that such power is not applicable. The situation changed when the current
regulation was put in place without the equivalent power. The Board has accepted in St. Amant and Ontario (Ministry of Community Safety and Correctional Services), cited in Appendix B, that the current
wording of the regulation means that compliance with the time limits set
out in the regulation is a precondition to the Board’s assuming jurisdiction over a case. Further, the Board found that it has no power to relieve against or extend those times limits, given the removal of that power from the wording of the current regulation. This is consistent with the case of Leisureworld, cited above, where despite the lack of explicit language
repealing a previous power to relieve against a time limit for submissions to arbitration, the Court found that the removal of the wording allowing it was equivalent to the repeal of the power. In Burkholder, relied on by the employer, this Board considered the time
limits set out in Regulation 378/07, and wrote as follows at paras. 10 and 11:
There still remains the issue of whether the PSGB has any authority
to extend the time limits set out in section 8 of Regulation 378/07 in light of the complainant's claim that the delay was due to a stress related illness. Even though the Board's statutory power to extend time limits had been revoked in 1996, there are PSGB decisions
arising during the period from 1996 until Regulation 378/07 came into force where the Board exercised its discretion to extend time limits. These cases, however, all dealt with the time limits set out in former Regulation 977 and these time limits had been clearly expressed in directory language. The language used to prescribe
time limits in the new Regulation 378/07, however, is significantly different and leaves no doubt as to its mandatory nature. This choice of mandatory language can lead to no other conclusion than that compliance with these time limits is a precondition to the PSGB assuming jurisdiction over a matter.
Given the mandatory nature of these time limits and the lack of any express statutory authority to relieve against these mandatory time limits, the Board must conclude that it has no power to alter the jurisdictional consequences of a failure to comply with the 14 day
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time limit to file the Form 1 Application. It is for this reason that this complaint must be dismissed. This conclusion is in no way a reflection on the merits of the complaint itself but merely a determination that the Public Service Grievance Board, as a tribunal created by statutory enactments, can only stay within the
limits of these enactments. This lack of power to relieve against the time limits means that the reasons for not meeting the time lines, however reasonable or sympathetic, are not matters that the Board can rely on to extend the time
lines. Counsel for the complainant urges the Board to find that the restrictions in the regulation are so problematic in the ways set out above, that they should not be considered binding in the way that the Board has found
them to be in its previous decisions interpreting Regulation 378/07. Despite the accuracy of counsel’s observations about what one could term a lack of user-friendliness of the wording of the regulation, as well as the fact that it can work hardship in particular cases, I do not find it appropriate to depart from the Board’s established jurisprudence. The Board’s case
law, in my view, has been faithful to what the regulation says, interpreted in light of Court decisions such as Leisureworld. As well, Courts at the highest level, as demonstrated in the Supreme Court of Canada’s decision in Ryan v. Moore and Cabot Insurance, have upheld the concept of
limitation periods prescribed by the legislature, albeit in that case, of the
much longer variety applicable in civil law suits. Further, consistency, short of rigidity, in tribunal decision making is highly desirable, as affirmed by the Supreme Court of Canada, in IWA v.
Consolidated-Bathurst Packaging Ltd., [1990] 1 SCR 282, 1990 CanLII
132 (SCC). This Board’s interpretation of the time limits in Regulation 378/07 has been articulated in a consistent way whenever issues have been raised about them, and it is for the regulatory process to change course if so advised.
[32] For the same reasons as expressed in the excerpt from the Telford decision
just above, the Board finds that it is without the jurisdiction to hear Mr. Doyle’s terms
and conditions complaint on its merits. One can readily accept Mr. Doyle’s
observation that the nature of his case is not similar to the fact situations in the
cases referred to above, and that the issues raised in his complaint are of very
serious importance to the integrity of the public service, as it raises issues in respect
of the potential for improper influence from private interests on the ability of public
servants to work in the public interest. Nonetheless, these aspects of the matter do
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not change the wording of the regulation, or its application to all matters coming
before the Board.
[33] In relation to the fairness issue that Mr. Doyle raises, it is notable that the
regulation binding the Board does not currently afford the flexibility to consider the
circumstances of the case in the way that s. 48(16) of the Labour Relations Act does
for grievances arising under collective agreements. Mr. Doyle and Mr. Telford are
two recent examples of the many complainants who feel very aggrieved by this
effect of the current state of the regulation. Moreover, it is not difficult to understand
their position, as the current wording can be a technical obstacle to full airing of
important issues. Nonetheless, and regardless of whether one agrees with the
priorities established in the regulation, the current regulation’s wording is focused on
promptness rather than flexibility in this respect, and has the effect of limiting the
Board’s jurisdiction.
b) Is the finding of conflict of interest beyond the Board’s jurisdiction?
[34] Mr. Doyle’s complaint is, in part, a challenge to the finding that he was in
conflict of interest when he made submissions on the Simcoe Strategy in 2009. He
disagrees with the finding, as his submissions related to a geographic area over
which he had no employment responsibility at the time. He also objects to the
process used to reach the conclusion, which he finds to have been inadequate since
he had no opportunity to address his Ethics Executive on the matter before the
finding. He also argues that the reassignment and directions that followed were
disciplinary in nature. The employer does not dispute that, if timely, the aspect of
the complaint regarding the restrictions could be heard if they were found to be
disciplinary, which the employer maintains they were not.
[35] However, counsel for the employer argues that the finding of conflict of interest
is a matter which falls outside the Board’s jurisdiction because of the assignment of
the task of making findings of conflict of interest to the Ethics Executives designated
under the PSOA. It is the employer’s position that, even assuming a timely
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complaint, the Board would have to create new terms and conditions of employment
to grant the remedy the complainant requests, in particular a reversal of the finding
of conflict of interest, and recommendations to the employer concerning systemic
human resource and organizations issues arising in this case. In the employer’s
view, since the regulation does not mention conflict of interest as one of the subjects
on which a complainant can come to the Board, the Board should not take
jurisdiction over it.
[36] Citing a decision of the Grievance Settlement Board (GSB), Ontario Public
Service Employees Union (Halsall) v. The Crown in Right of Ontario (Ministry of
Agriculture, Food and Rural Affairs), GSB Nos. 2007-1045, 2007-3394, February 3,
2009 (Briggs), employer counsel argues that this Board should adopt a similar
approach - to the effect that, where there is no provision in the collective agreement
relating to conflict of interest, and the directions were found to be non-disciplinary,
the Grievance Settlement Board found no jurisdiction to deal with a grievance
contesting the employer’s directions as to conflict of interest.
[37] Mr. Doyle fundamentally disagrees with the idea that the employer is not
accountable for its decisions concerning conflict of interest, and notes that the PSOA
does not remove the subject from the Board’s jurisdiction. Further, he observes that
the GSB’s Halsall decision, relied upon by the employer, related to a situation
dealing with a collective agreement, rather than the situation at hand, where he is
not covered by a collective agreement. Further, in his view, the negative effect on
his career of the reassignment and restrictions placed upon him, are clearly
disciplinary, and the fact that the employer did not refer to them as disciplinary
should not end the matter.
[38] The Board’s jurisdiction over properly filed complaints in respect of discipline
and terms and conditions of employment is well established. The employer has
conceded that there is jurisdiction if the directions concerning conflict of interest are
found to be disciplinary. The jurisprudence in employment law is also very well
established that one cannot do indirectly that which one cannot do directly.
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Therefore, the fact that the employer refers to its directions and reassignment as
non-disciplinary is not the end of the matter. The facts of this case certainly raise a
viable argument that the directions and reassignment to Mr. Doyle were disciplinary,
and thus if it had been properly filed, it could have been heard on that basis.
[39] The remaining question is whether the conflict of interest provisions and their
effect on employees such as Mr. Doyle fall within the Board’s jurisdiction over terms
and conditions of employment. As noted, the employer’s position is that, since
conflict of interest does not appear in the regulation as an itemized subject over
which the Board has jurisdiction, and given the role the statute assigns to the Ethics
Executives, it has been removed from the Board’s jurisdiction.
[40] The statutory provisions regarding the Board’s composition, powers and
limitations thereon, are very detailed in many respects. In respect of a complaint
concerning terms and conditions of employment section 4(2) of Regulation 378/07
articulates a number of categories which are not to be subject of such a complaint,
but matters relating to conflict of interest are not in that list. This must be understood
in the context of the revisions to the Board’s governing regulation which resulted in
the current wording, in which important changes were made, including the removal
of the discretion to extend time limits. At this same time, when the PSOA was
amended to include Part VI, and the governing regulation for the PSGB was
amended, the Board’s general jurisdiction over complaints concerning terms and
conditions was left intact. In this light, the Board cannot accept the employer’s
argument that the failure to list conflict of interest in the matters within the Board’s
jurisdiction means that it was intended to give exclusive jurisdiction to the
Commissioner. Rather, the Board finds this to be the reverse of the situation dealt
with in the Leisureworld decision [S.E.I.U., Local 204 v. Leisureworld Nursing Homes
Ltd., 70 A.C.W.S. (3D) 281] where a statutory power that had previously existed was
removed, and the court found that this demonstrated an intention that the former
power no longer existed. In the Board’s view, the fact that the subject of conflict of
interest was not added to the list of things excluded from the Board’s jurisdiction,
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such as pay for performance and job classification matters, supports a finding that
there was no legislative intention to that effect.
[41] It is the Board’s view that in order to find that conflicts of interest were entirely
removed from the Board’s jurisdiction, it would be necessary to find that the statutory
and policy provisions binding public servants in matters of conflict of interest were
not part of their terms and conditions of employment. To the contrary, everything
about the tone of the statutory and policy provisions surrounding conflict of interest,
as well as the potential consequences set out in statute for their breach,
demonstrate the legislature’s intention that they be a very important part of the terms
and conditions of the employment of public servants. The fact that the Grievance
Settlement Board found in Halsall that the subject matter of conflict of interest was
not covered by the relevant collective agreement, in the absence of discipline, was a
decision specific to the facts of that case and the collective agreement. It does not
speak to the contents of the terms and conditions of public servants excluded from
collective bargaining with which the PSGB is concerned. The terms and conditions
of employment of those excluded employees come from a variety of sources, such
as statute, policy, regulation and individual contractual agreements of various kinds,
and include those related to conflict of interest.
[42] It is apparent that an Ethics Executive, in this case Mr. Doyle’s Deputy Minister,
are given important powers and tools for dealing with matters of conflict of interest
by the PSOA. However, it would take much clearer language to find that they are
given exclusive jurisdiction over the subject matter, or that their decisions are not
reviewable as a term or condition of employment. The finding of conflict of interest
was a decision of the employer in its managerial and supervisory role, which
affected Mr. Doyle’s working conditions. Review of such decisions is at the heart of
the Board’s jurisdiction over complaints regarding discipline and terms and
conditions of employment both as to procedure and substance.
[43] The fact that the employer concedes that if discipline follows a finding of
conflict, a consequence specifically contemplated by s. 70 of the PSOA, the PSGB is
- 18 -
entitled to hear the matter, supports this finding. In order to determine whether
discipline for a breach of conflict of interest was justified, the basis for the discipline
would have to be examined. The statutory provisions concerning the exercise of the
powers of an Ethics Executive, and the direction to public servants to comply with
them, found in s. 65 (8) of the PSOA, would be part of the analysis, along with all the
other circumstances relevant to the complaint.
[44] In the Board’s view, the situation in respect of the role of the Ethics Executive is
analogous to many other statutory and regulatory provisions, which lead to terms
and conditions of employment or disciplinary or other managerial decisions which
regularly form part of the complaints heard by the PSGB. For example, the PSOA
and other statutes assign many responsibilities, such as who will set remuneration,
or who is responsible for the administration of the many diverse provincial
institutions and ministries. These provisions become part of the structure of
managerial responsibility which produce or affect the terms and conditions of an
employee’s employment, including by way of direction or penalty which are argued
to be disciplinary. The PSGB is not empowered to set terms and conditions of
employment, but it is given the role of enforcing the application of these terms and
conditions by way of regulation 378/07, which gives the Board jurisdiction over
properly filed complaints about terms and conditions of employment and discipline.
[45] In exercising its jurisdiction over complaints which raise issues about the
interaction between the PSOA provisions about conflict of interest and the relevant
terms and conditions of employment, the Board would, of course, be required to
have due regard for the statutory provisions. See, for an example of such an
approach, albeit with a different kind of issue, and in the context of an arbitration
under a collective agreement dealing with PSOA provisions concerning conflict of
interest, a decision of Arbitrator Burkett in Ontario (Alcohol & Gaming Commission)
v. O.P.S.E.U., Local 565; 171 L.A.C. (4th) 382, where the employer argued that the
arbitrator’s jurisdiction to review a conflict of interest policy for reasonableness was
ousted by the provisions of PSOA as to the Commissioner’s role. The arbitrator
carefully traced his jurisdiction under the collective agreement, taking into account
- 19 -
the statutory authority of the Commissioner. He delayed his consideration of the
policy in question until the Commissioner had completed the statutory process of
review of the policy, but reserved his jurisdiction under the collective agreement to
the extent that the employer’s policy might exceed or deviate from the minimum
statutorily mandated rules, as well as over the process of consultation which led up
to the formulation of the conflict of interest policy.
[46] In sum, the Board finds that the fact that Mr. Doyle’s complaint has aspects
related to conflict of interest does not remove it from the Board’s jurisdiction.
Whether or not the specific remedies requested would be granted if the matter
proceeded on its merits does not determine the jurisdictional question, and is best
left for a hearing on the merits in an appropriate case.
c) Does the complaint under Part VI make out a viable case for a reprisal in response to
the reporting of wrongdoing?
[47] It is clear in the regulation that the time lines discussed above do not apply with
respect to Mr. Doyle’s complaint under Part VI of the Act (Disclosing and
Investigating Wrongdoing). For this stream of Mr. Doyle’s complaint, the employer
argues that, even accepting the facts pleaded by him, they do not make out a viable,
or prima facie, case, and should be dismissed on that basis. Foremost among the
employer’s submissions is that Mr. Doyle only disclosed what he alleged was
wrongdoing to the Commissioner after the restrictions which he claims were a
reprisal. The employer relies on the finding of the Board in its decision in the case of
Martin Ois (Complainant) v. The Crown in Right of Ontario (Ministry of Community
Safety and Correctional Services), 2014 CanLII 76835 (ON PSGB) (O’Neil), to the
effect that where that is the time sequence, a complaint of reprisal cannot succeed.
[48] By contrast, Mr. Doyle sees the time sequence as starting with the initial
restrictions which began in 2003, rather than just relating to the events of 2010 when
it is clear that the finding of conflict preceded the disclosure to the Commissioner.
Mr. Doyle notes that the restrictions were imposed before the protections in Part VI
- 20 -
of the PSOA, under which he now complains, came into force. Nonetheless, he did
tell Ministry management at that time that he thought the restrictions were wrong.
As well, in 2007, he expressed his view that the Simcoe-wide restriction was wrong
and inappropriate. However, he did not feel it was an option to disclose the
wrongdoing to those who were responsible for it in the first place. His decision to
address the Simcoe Strategy publicly, but as a private citizen, in 2009, was informed
by his view that in restricting him from working on Simcoe County, the Ministry had
engaged in wrongdoing, by depriving the government of the best independent
advice, and was threatening the health and wellbeing of that region, and by
extension the rest of Ontario. Mr. Doyle emphasizes that the matter he addressed
was a discussion paper only, in response to a general call for public input, rather
than the official position of the government. Since he had been assigned no
responsibility for the matter for 2.5 years by then, he felt authorized to provide input
as a private citizen, and he did so because of the enduring importance of the issues.
In doing so, he submits he gave the government the planning advice required on the
issues, rather than taking the government to task.
[49] Mr. Doyle points out that in reassigning him in 2010 to a policy job, he was
removed from having any approval role at all in provincial planning. Mr. Doyle sees
the transfer as a disciplinary reprisal for speaking out in 2009 on what was wrong
with the approach represented in the discussion paper entitled “Simcoe Area: A
strategic Vision for Growth”. He asserts that the basis of his reprisal complaint is
that the finding of conflict was a reprisal for making his submission to the public
consultation in 2009, which in turn arose from his verbal disclosure to senior Ministry
executives that the restrictions were wrong.
[50] Mr. Doyle’s position raises the issue of whether his remarks in 2009 were a
disclosure of wrongdoing, to which the 2010 reassignment could then be seen as an
action in reprisal.
[51] Those remarks make up a fifteen-page paper which was filed in these
proceedings. They articulate a detailed, thoughtful analysis which was clearly critical
- 21 -
of those elements of the strategy which would promote new major urbanization in
South Simcoe County. He offered the advice that this would undermine Lake
Simcoe’s water quality, as well as the government’s overall vision for the Greater
Golden Horseshoe, represented by such initiatives as the Greenbelt Plan and the
Lake Simcoe Protection Plan. The latter addressed Lake Simcoe’s finite capacity to
provide water and assimilate sewage and storm water and required environmental
assessments for servicing (sewer, water and stormwater). Mr. Doyle emphasized
that designating additional land for urbanization without those assessments and
framework in place would perpetuate the problem that had already resulted in the
degradation of Lake Simcoe. The paper identifies several other major planning
issues in relation to transportation, highway infrastructure, providing for complete
communities, employment and agriculture, and the need for respect for already
approved plans and the stability of a major agricultural region. It is an informed,
multi-layered analysis of the proposed direction, its historical antecedents and
predicted planning, fiscal and environmental consequences. Although he identifies
two positive elements, there can be no doubt that Mr. Doyle’s remarks
communicated his view that the other elements of the proposal made the direction
wrong, contrary to the public interest, and not supportive of a democratic planning
process.
[52] It is the employer’s position that Mr. Doyle’s submissions in 2009 were neither a
disclosure of wrongdoing, nor made in accordance with Part VI of the PSOA. The
prohibition for reprisal for reporting wrongdoing is in s. 139, which reads as follows:
No reprisals
139. (1) No person shall take a reprisal against a public servant because he or she has,
(a) sought advice about making a disclosure about wrongdoing in
accordance with this Part; (b) made a disclosure about wrongdoing in accordance with this Part;
(c) co-operated in an investigation or other process related to a disclosure of wrongdoing made in accordance with this Part;
- 22 -
(d) acted in compliance with this Part; or (e) sought enforcement of this Part. 2006, c. 35, Sched. A, s. 139 (1).
Same (2) For the purposes of subsection (1), a reprisal is any measure taken against a public servant that adversely affects his or her employment or appointment and includes but is not limited to,
(a) ending or threatening to end a public servant’s employment or appointment; (b) disciplining or suspending or threatening to discipline or
suspend a public servant; (c) imposing or threatening to impose a penalty related to the employment or appointment of a public servant;
(d) intimidating or coercing a public servant in relation to his or her employment or appointment. 2006, c. 35, Sched. A, s. 139 (2).
[53] This section sets out the building blocks for a viable complaint of reprisal, in
that Paragraphs (a) to (e) of s. 139 set out the triggers for prohibited reprisals,
including the one in focus here: a disclosure of wrongdoing under Part VI.
“Wrongdoing” is a term defined in section 108, divided into four categories which
can be summarized as actions of a public servant which constitute:
(a) a breach of a statute or regulation, whether provincial or federal;
(b) an act or omission that creates a grave and unreasonable
danger;
(c) gross mismanagement;
(d) directing or counselling such wrongdoing.
[54] On their face, Mr. Doyle’s remarks are aimed at warning the government away
from a direction that he believes would create environmental and health dangers,
and one can infer, a mismanagement of taxpayer funds. They are presumably
aimed at public servants who formulated the strategy with which he disagrees.
However, the remarks do not actually disclose wrongdoing. Moreover, and
- 23 -
importantly for this portion of the complaint, even if one were to interpret the remarks
broadly, in light of knowledge of the preceding restrictions, as a protest against what
he sees as the wrongful removal of his responsibility for planning in the Simcoe
region, they are not a disclosure in accordance with Part VI, which is what is
contemplated by the statute as the precursor to the prohibited reprisals.
[55] The procedure for disclosing wrongdoing is set out in s. 114 of the PSOA, and
contemplates disclosure to a public servant’s relevant Ethics Executive, or to the
Office of the Integrity Commissioner. This is a prescribed route, internal to the
government, to allow for the kind of confidential investigation that the statute has
contemplated. It is true that Mr. Doyle’s submissions were made to a forum which
was set up by government, but it was for public consultation, and has none of the
hallmarks of a disclosure of wrongdoing in accordance with Part VI of the PSOA, or
of an attempt to seek compliance with Part VI. The remarks only came to the
attention of Mr. Doyle’s Ethics Executive some time after they were made, when
they were picked up by the press, and thus it would be a considerable stretching of
the facts to say they were a disclosure to his Ethics Executive. As well, there is no
evidence that the remarks reached the Integrity Commissioner until after the
reassignment complained of as a reprisal. Nor is there evidence of any use of the
directives for disclosure contemplated by the statute. There may be fact situations
where compliance with the procedural requirements for reporting wrongdoing is not
necessary to being considered under Part VI, especially given the categories in s.
139 of seeking advice or enforcement of Part VI. However, the facts of this case do
not appear to the Board to have been associated with the provisions of Part VI in
any meaningful way until after the reassignment in 2010.
[56] As noted above, Mr. Doyle argued that the finding of conflict was a reprisal for
making his public submission in 2009, which in turn arose from his verbal disclosure
to senior executives that the restrictions were wrong. This raises the suggestion that
when he voiced his objection to the restrictions on his planning responsibilities, he
had made a disclosure of wrongdoing which was brought forward through his
submissions to the public consultation. The facts before the Board about those
- 24 -
communications are that the restrictions were imposed in 2003 and 2005, which was
before Part VI was in effect, so that it is difficult to see how it could be a disclosure in
accordance with Part VI. Section 113(3) specifically recognizes that there may be
other lawful routes of disclosure, but distinguishes them from the type of disclosure
prescribed in Part VI, in the following wording:
Nothing in this Part shall be interpreted to limit any right that any public servant may have under any other Act or otherwise at law to disclose
information about wrongdoing in the public service of Ontario.
[57] In the result, on the facts of this case, the Board finds that the only disclosure of
wrongdoing in accordance with Part VI of the PSOA occurred after the restrictions
and reassignments complained of as a reprisal. Therefore, and regardless of the
importance of the issues he raises, there is not a viable basis for a successful
complaint of reprisal under Part VI of the PSOA.
[58] Given these findings, it is not necessary to address another element of the
employer’s argument, to the effect that the amount of time intervening between the
initial restrictions and the reassignment said to be a reprisal for his protesting them,
was too long to support a viable case of reprisal.
Disclosure to the Press
[59] After the hearing of the preliminary motions, requests were received by the
Board for access to the parties' submissions to the Board on Mr. Doyle’s complaints.
After seeking and considering submissions from the parties, the Board made the
following ruling on March 10, 2017:
The Board has considered the parties' submissions on the question of the
request for release of the parties' submissions to the press, Mr. Doyle's favouring
release, and the employer's favouring redaction of some portions relating to the
process before the Integrity Commissioner. As the question of the use of
information related to an investigation by the Integrity Commissioner in a matter
before the Board is one of first impression for the PSGB, the Board has decided
to seek comments from the Integrity Commissioner about release of the
information to which objection was taken. In the interim, the Board has decided to
release material on the file to the reporters for the Globe and Mail and Toronto
Star in partial form, with redaction of references objected to concerning the
- 25 -
content of the Integrity Commissioner's investigation, report and findings,
pending consultation with the Office of the Integrity Commissioner.
[60] The parties were directed not to further disclose the material pending further
direction from the Board. Disclosure of the portions of the material not objected to
was made to the requesting newspapers, who were advised that the facts asserted
in the documents had not been proven in a hearing, that there had been no findings
of fact by the Board and that documents referred to as "agreed statements of fact"
were in fact proposals for agreed statements of facts, and did not result in
agreement on all the facts in those documents, such that they should be considered
to be statements of the position of the party making them, subject to potential later
proof.
[61] Submissions were then sought and received from the Office of the Integrity
Commissioner, the Honourable A. David Wake, and the parties were given the
opportunity to comment on those submissions. The Commissioner’s position is that
no information relating to an investigation conducted by former Integrity
Commissioner Morrison should be released to the press. Central to the submissions
from counsel to the Integrity Commissioner is the legislative requirement in s. 112 of
the PSOA that its process be conducted in a manner that protects the identities of
persons involved, including persons who make disclosures, witnesses and persons
alleged to be responsible for wrongdoing, except where the interests of fairness
require that a person’s identity be disclosed. The Commissioner’s submissions
underlined that this section is of the utmost importance as it provides assurance to
“whistleblowers” and those giving evidence during the course of an investigation that
their identities will be protected to the extent possible. In light of this, the
Commissioner does not make any information public about its investigations, unless
it decides to make a public report as contemplated by section 130, or in an
anonymized summary published in its annual report under section 133.
[62] The Commissioner further made the following three submissions:
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a) that the PSGB does not have jurisdiction to make information about the
investigation public, as that role is reserved to the Commissioner under section
130 of the PSOA. The Commissioner notes that it can be inferred from the lack
of a public report in respect of Mr. Doyle’s disclosure that Commissioner
Morrison did not find it to be in the public interest to publish a report. It is the
Commissioner’s position that the PSGB would be improperly stepping into the
Commissioner’s shoes to order that information about the investigation be
released to the media;
b) that confidentiality in respect of this information is required by the PSOA, and that
release to the media would be contrary to the intent of sections 112 and 130 of
the PSOA. The Commissioner submits that if it had been intended that
information about investigations be made widely available, these provisions
would not have been required.
c) that any prior release of an investigation report to members of the Ontario Public
Service and/or Mr. Doyle does not create an expectation that information about
the investigation will be released publicly. Section 136 provides for the release to
the discloser of such information as the Commissioner finds appropriate.
[63] The employer supports the Commissioner’s submissions, while Mr. Doyle
argues for disclosure of the limited material about the Commissioner’s investigation
contained in his own submissions. In dealing with these submissions, the Board has
framed them in a way that protects the confidentiality of the information to the extent
possible, in light of the conclusions drawn below. Nonetheless, the essence of the
submissions is represented here, even though every aspect of the submissions is
not reproduced below, and all of them have been carefully taken into account.
[64] Mr. Doyle underlines the fact that the former Commissioner released some
information about the investigation, both to him and to others. As well, the
Commissioner publishes Annual Reports which contain information about the cases
summarized there, albeit in an anonymized fashion. Further, Mr. Doyle highlights the
- 27 -
fact that the PSGB has its own obligations for a public hearing process. It is Mr.
Doyle’s position that to the extent that the OIC released information of its own
volition, the PSGB would not be releasing confidential information in following suit.
[65] In making its submissions the Commissioner did not comment on the accuracy
of the information redacted from the PSGB’s disclosure to the press, considering it
inappropriate, both because of the need for the Commissioner to maintain
confidentiality and so as not to interfere with the proceedings before the PSGB. It is
Mr. Doyle’s position that by not assessing the accuracy of the redacted information,
and whether its source was confidential or already public, the Office of the Integrity
Commissions failed to make a determination on a fundamental matter, and thus did
create potential interference with the PSGB’s public hearing process.
[66] In response to the other submissions of the OIC, Mr. Doyle submits that the
PSGB would not be stepping into the Commissioner’s shoes because it would not be
releasing information from the confidential report, and would just be meeting its own
obligations to conduct a fair, public hearing. Essentially, Mr. Doyle is looking to
statements from the OIC to assist in the documentation and validation of facts
relevant to the proof of his case. For Mr. Doyle, the complaints before the PSGB and
the OIC investigation are inextricably bound together. He notes that, although the
report that he was provided with was redacted, he signed no confidentiality
agreement in this respect.
[67] Mr. Doyle is not privy to what individuals received the report, and in what form,
and made other submissions about the distribution of the report within the Ministry,
which it is not necessary to deal with for the purposes of this decision.
[68] For the purposes of this portion of the decision, the question to be answered is
whether Mr. Doyle’s full submissions should be released to the press, despite the
fact that doing so would make public certain information about the OIC’s process
that the Commissioner did not make public, and/or make it possible to identify
individuals not identified by the Commissioner in what she did publish. In this
respect, it is noteworthy that the Board has not seen the Commissioner’s confidential
- 28 -
report and Mr. Doyle has been circumspect in limiting the matters in respect of the
Commissioner’s process that he wishes to be made public to those which he sees
as necessary to his complaint. Further, in his submissions in response to the
Commissioner’s comments, he identified some portions that he recognized might
reveal confidential details of the Commissioner’s process or report and thus could be
redacted. However, he objects to the redaction of the rest of his submissions in
relation to the Commissioner’s process as they were factual or purely process-
related and do not reveal information from the confidential report. Further, it is the
complainant’s position that all materials on the Board’s file are public as they all
post-date the last mediation session, and are thus related to the public hearing of
these matters.
[69] The request from the press came after an oral hearing at the Board concerning
the preliminary motions which they could have attended, but which was only
attended by the parties and their representatives. The fact that it would have been
possible for the press to have heard the information the employer and the
Commissioner are currently objecting to is worth noting, but not determinative, as it
is not possible to know in hindsight whether the employer would have made
submissions about what should and should not be shared with the press if they had
been present.
[70] Neither party argued that hearings of the PSGB ought not to be public, and the
Statutory Powers and Procedures Act provides as follows in respect of tribunals
such as the PSGB with statutory decision-making powers:
9. (1) An oral hearing shall be open to the public except where the tribunal
is of the opinion that,
(a) matters involving public security may be disclosed; or (b) intimate financial or personal matters or other matters may be
disclosed at the hearing of such a nature, having regard to the
circumstances, that the desirability of avoiding disclosure thereof in
the interests of any person affected or in the public interest
- 29 -
outweighs the desirability of adhering to the principle that hearings
be open to the public, in which case the tribunal may hold the
hearing in the absence of the public. R.S.O. 1990, c. S.22, s. 9 (1);
1994, c. 27, s. 56 (16).
Written hearings
(1.1) In a written hearing, members of the public are entitled to
reasonable access to the documents submitted, unless the tribunal is of the opinion that clause (1) (a) or (b) applies. 1994, c. 27, s. 56 (17). Electronic hearings
(1.2) An electronic hearing shall be open to the public unless the tribunal is of the opinion that, (a) it is not practical to hold the hearing in a manner that is open to
the public; or (b) clause (1) (a) or (b) applies. 1997, c. 23, s. 13 (14).
[71] The above noted provisions are codification of the practical reality that, even
where hearings are generally public, the openness of the hearing is not absolute. It
remains in the Board’s discretion to determine whether the desirability of avoiding
disclosure outweighs the principle of open hearings. Issues about confidentiality of
information in proceedings and decisions of arbitrators and administrative tribunals
arise in many contexts. They are generally dealt with by a balancing of the open
court principle with claims for confidentiality and privacy, according to the relevant
legal and factual context. These issues fall within the power of the adjudicator to
control the process, and may involve consideration of the provisions of applicable
privacy and other statutes. For a review of many of the issues involved in balancing
the sensitivity of personal information and potential harm in its publication, against
the presumption of publication created by the open court principle, albeit in a
different province’s statutory scheme, see British Columbia Arbitrator Lanyon’s
decision in Sunrise Poultry Processors Ltd v United Food & Commercial Workers,
Local 1518, 2013 CanLII 70673 (BC LA) affirmed on different grounds in a decision
of the British Columbia Court of Appeal, reported as 2015 BCCA 354 (CanLII).
- 30 -
[72] In dealing with the issue in this case, the parties’ submissions centred on the
statutory provisions in Part VI of the PSOA, and the direction in s. 112 that the
process of dealing with disclosures of wrongdoing be carried out in a manner that
protects the identities of those involved, “except where the interests of fairness
require that a person’s identity be disclosed to one or more persons”. Essentially,
this amounts to a submission that the statutory provisions create a presumption of
non-disclosure. In respect of the differing roles of the Commissioner and the PSGB
in respect of this provision, the employer argues that the Commissioner has
exclusive jurisdiction because s. 130 puts the release of information into the
jurisdiction of the Integrity Commissioner and not that of the PSGB. The fact that the
Commissioner may release information to the person who has disclosed wrongdoing
to the Commissioner, or to the public in a public or annual report, does not remove
the jurisdiction from the Commissioner in the employer’s view. The employer argues
that the information Mr. Doyle wishes to disclose would immediately identify not just
him, but the Ministry and the nature of the allegations involved because it will be
associated with Mr. Doyle, his work and his complaint. In the employer’s
submission, this would make the OIC mandate in respect of confidentiality practically
useless. The employer sees the context of a release to the media as different than
that of the context of receipt of evidence in a hearing where the PSGB has tools at
its disposal to protect confidentiality.
[73] In considering this issue, it is important to make the distinction between the
introduction of facts in the context of the Board’s process that may also have been
dealt with by the Commissioner, as opposed to making the link between the
Commissioner’s investigation or findings about those facts which were kept out of
the public domain. It is the latter which is problematic in the Board’s view. In order
for the PSGB to deal with Mr. Doyle’s complaint, it is necessary to deal with many of
the same facts, and it was not argued that this in itself was problematic. However, to
the extent possible while properly performing its adjudicative mandate, the Board
finds it appropriate to attempt to keep confidential that which the Commissioner
chose not to make public. In the Board’s view, this is analogous to how adjudicators
in employment disputes generally treat facts dealt with in mediation. During public
- 31 -
hearings, strong protection is given to the confidential nature of mediation and the
conversations and proposals exchanged there, to protect its important part in
resolving employment disputes. However, the protection is not absolute, as there
are sometimes disputes, such as over whether a settlement was reached, which
makes it necessary to hear evidence about some of those conversations and refer to
them in a public decision. However, the cloak of confidentiality does not extend to
the introduction into evidence in a hearing of the matter of facts relevant to and
necessary for the hearing of a complaint properly before the Board. What is
necessary will be a question for the Board on a case by case basis, and to this
extent, the Board does not accept the employer’s argument that the Commissioner
has exclusive jurisdiction. The Board will consider and respond to requests from the
parties for protection of particular portions of evidence based on privacy or other
considerations on a case by case basis as well.
[74] In this particular case, given the conclusions above about the timeliness of the
Form 1 complaint, and the lack of a prima facie case for the Form 1A case, the
Board does not find it necessary or desirable to disclose further facts in relation to
the Commissioner’s investigation, either in this decision, or to the press. Doing so
would provide information that would likely reveal the identity of some participants in
the Commissioner’s process, without any necessity for the PSGB’s process, as the
complaints will not be proceeding further, and the facts disclosed thus far are more
than sufficient to understand the nature of the complaints before the PSGB and this
decision.
[75] To summarize the Board’s findings, for the reasons set out above:
a) Mr. Doyle’s terms and conditions complaint, filed on Form 1, was not filed
with the Board in a timely manner, and the Board does not have the power
to extend the time limits in order to hear it on its merits;
b) Matters of conflict of interest may fall within the Board’s jurisdiction over a
complaint that is properly before it, as falling within the Board’s jurisdiction
- 32 -
to hear complaints concerning terms and conditions of employment and
discipline;
c) There is not a prima facie case of a reprisal for the disclosure of
wrongdoing, as the reporting of wrongdoing occurred after the alleged
reprisal, i.e. the reassignment complained of as disciplinary. Thus, the
Form 1A complaint will not proceed to a hearing on its merits;
d) The Board declines to disclose further information to the press in respect
of the Commissioner’s investigation, findings or reports.
[76] For the reasons set out above, the complaints are hereby dismissed.
Dated at Toronto, Ontario this 14th day of July 2017.
Kathleen G. O’Neil, Chair
- 33 -
APPENDIX A
Excerpts from The Public Service of Ontario Act:
Ethics executive for public servants 62. (1) The ethics executive for a public servant is determined as
follows:
1. The ethics executive for a public servant employed under Part III who works in a ministry, other than in a minister’s office, is the deputy minister.
2. The ethics executive for a deputy minister is the Secretary of the Cabinet. 3. The ethics executive for a public servant who works in a public
body, whether as a government appointee, as an employee under
Part III or as an employee of the public body is the individual who is prescribed under subsection 71 (1.1) for the public servant or, if no individual is prescribed under that clause for the public servant, the chair of the body.
4. The ethics executive for the Secretary of the Cabinet, the chairs of public bodies and any individuals prescribed under subsections 55 (1.1) and 71 (1.1) is the Conflict of Interest Commissioner.
5. The ethics executive for the Conflict of Interest Commissioner is the
Integrity Commissioner. 2006, c. 35, Sched. A, s. 62 (1); 2009, c. 33, Sched. 17, s. 10 (11). …
65 (8) A public servant or former public servant shall comply with a
direction of the ethics executive or the Conflict of Interest Commissioner. 2006, c. 35, Sched. A, s. 65 (8). …
Penalty
70. A public servant who contravenes a conflict of interest rule applicable to him or her or who contravenes a direction under section 65 or 69 is subject to disciplinary measures, including suspension and
dismissal. 2006, c. 35, Sched. A, s. 70.
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PART VI DISCLOSING AND INVESTIGATING WRONGDOING 108. (1) In this Part,
“wrongdoing” means, (a) a contravention by a public servant, a minister or parliamentary assistant of an Act of the Assembly or of the Parliament of Canada, or of a regulation made under such an Act,
(b) an act or omission of a public servant, a minister or parliamentary assistant that creates a grave danger to the life, health or safety of persons or to the environment, where the danger is unreasonable having regard to his or her duties, powers and functions and any other
relevant circumstance, (c) gross mismanagement by a public servant, a minister or parliamentary assistant in the work of the public service of Ontario,
(d) directing or counselling wrongdoing within the meaning of clauses (a) to (c) by a public servant, a minister or parliamentary assistant. 2006, c. 35, Sched. A, s. 108 (1). …
Fair and expeditious 112. The Integrity Commissioner and every person or body to whom a matter is referred under subsection 118 (2), 122 (2) or 123 (1)shall
carry out their functions under this Part in a manner that, (a) is fair and is as informal and expeditious as possible; and
(b) protects the identities of persons involved in disclosures of
wrongdoing, including persons who make disclosures, witnesses and
persons alleged to be responsible for wrongdoing except where the interests of fairness require that a person’s identity be disclosed to one or more persons. 2006, c. 35, Sched. A, s. 112. …
113 (3) Nothing in this Part shall be interpreted to limit any right that any public servant may have under any other Act or otherwise at law to disclose information about wrongdoing in the public service of Ontario. 2006, c. 35, Sched. A, s. 113 (3).
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Disclosure, procedures 114. Where a public servant or former public servant has reason to believe that there has been wrongdoing, he or she may disclose the wrongdoing in accordance with the procedures established under
section 115. 2006, c. 35, Sched. A, s. 114. Directives Directives, Public Service Commission
115. (1) The Public Service Commission may by directive establish procedures to deal with disclosures of wrongdoing by, (a) a public servant who works in a ministry; and
(b) a former public servant who worked in a ministry immediately before ceasing to be a public servant. 2006, c. 35, Sched. A, s. 115 (1).
Directives, Management Board of Cabinet (2) The Management Board of Cabinet may by directive establish procedures to deal with disclosures of wrongdoing by,
(a) public servants who work in a public body; and (b) former public servants who worked in a public body immediately before ceasing to be a public servant. 2006, c. 35, Sched. A, s. 115 (2).
Same (3) Without limiting the generality of subsections (1) and (2), directives issued under those subsections may,
(a) establish procedures by which a public servant or former public servant may make disclosures of wrongdoing, including directions as to the persons to whom disclosures may be made;
(b) establish procedures to protect the identities of persons involved in the disclosure process, including persons who make disclosures, witnesses and persons alleged to be responsible for wrongdoing; and (c) provide for exceptions to be made to procedures described in
clause (b) where the interests of fairness require that a person’s
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identity be disclosed to one or more persons. 2006, c. 35, Sched. A, s. 115 (3). Same (4) Directives issued under this section may be general or particular
in their application. 2006, c. 35, Sched. A, s. 115 (4). …
Directives, Public Service Commission 115. (1) The Public Service Commission may by directive establish procedures to deal with disclosures of wrongdoing by,
(a) a public servant who works in a ministry; and (b) a former public servant who worked in a ministry immediately before ceasing to be a public servant. 2006, c. 35, Sched. A, s. 115
(1). Directives, Management Board of Cabinet (2) The Management Board of Cabinet may by directive establish
procedures to deal with disclosures of wrongdoing by, (a) public servants who work in a public body; and (b) former public servants who worked in a public body immediately
before ceasing to be a public servant. 2006, c. 35, Sched. A, s. 115 (2). Same
(3) Without limiting the generality of subsections (1) and (2), directives issued under those subsections may, (a) establish procedures by which a public servant or former public servant may make disclosures of wrongdoing, including directions as
to the persons to whom disclosures may be made; (b) establish procedures to protect the identities of persons involved in the disclosure process, including persons who make disclosures, witnesses and persons alleged to be responsible for wrongdoing; and
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(c) provide for exceptions to be made to procedures described in clause (b) where the interests of fairness require that a person’s identity be disclosed to one or more persons. 2006, c. 35, Sched. A, s. 115 (3). Same
(4) Directives issued under this section may be general or particular in their application. 2006, c. 35, Sched. A, s. 115 (4). REPORT ON CONCLUSION OF INVESTIGATION BY INTEGRITY
COMMISSIONER 129. (1) On concluding an investigation of a disclosure under this Part, the Integrity Commissioner shall make a report to the person to whom the Commissioner made the referral under subsection 118 (2).
2006, c. 35, Sched. A, s. 129 (1). … (4) A report required by subsection (1) shall be in writing and shall
include, (a) findings of wrongdoing, if any; (b) reasons to support any findings; (c) any recommendations that the Commissioner considers appropriate. 2006, c. 35, Sched. A, s. 129 (4).
… PUBLIC REPORTS BY INTEGRITY COMMISSIONER 130. (1) This section applies where the Integrity Commissioner has
made a report respecting a disclosure of wrongdoing under section 129 and is of the opinion that it is in the public interest that a public report be made. 2006, c. 35, Sched. A, s. 130 (1). (2) In the circumstances described in subsection (1), the Integrity
Commissioner shall make a public report respecting the disclosure. 2006, c. 35, Sched. A, s. 130 (2). …
Annual report, activities under this Part 133. (1) The annual report of the Integrity Commissioner required by section 24 of the Members’ Integrity Act, 1994 shall include,
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(a) the number of disclosures received by the Commissioner under section 116 during the year; (b) the number of refusals made by the Commissioner under section 117 during the year;
(c) the number of referrals made by the Commissioner under subsection 118 (2) during the year; (d) the number of reports in which the Commissioner makes recommendations under section 121 during the year;
(e) a summary of what the Commissioner knows respecting responses to recommendations under section 121 during the year; (f) the number of investigations initiated by the Commissioner under
section 122 during the year; (g) a summary of what the Commissioner knows respecting the outcomes during the year of findings of reprisals under this Part;
(h) anything else that the Commissioner considers relevant in respect of his or her activities under this Part during the year. 2006, c. 35, Sched. A, s. 133 … Duty to inform discloser, no public report
136. (1) Where the Integrity Commissioner has a duty to report under section 129 but does not have a duty to make a public report under section 130, the Commissioner shall inform the person who made the disclosure under section 116 that he or she has concluded the
investigation. 2006, c. 35, Sched. A, s. 136 (1). (2) Subject to section 137, the Integrity Commissioner may give the person who made the disclosure such information respecting the investigation and findings as the Commissioner considers appropriate
in the circumstances. 2006, c. 35, Sched. A, s. 136 (2). Limitation on duty to inform Protection from Reprisals
No reprisals 139. (1) No person shall take a reprisal against a public servant because he or she has,
(a) sought advice about making a disclosure about wrongdoing in accordance with this Part;
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(b) made a disclosure about wrongdoing in accordance with this Part; (c) co-operated in an investigation or other process related to a disclosure of wrongdoing made in accordance with this Part;
(d) acted in compliance with this Part; or (e) sought enforcement of this Part. 2006, c. 35, Sched. A, s. 139 (1).
(2) For the purposes of subsection (1), a reprisal is any measure taken against a public servant that adversely affects his or her employment or appointment and includes but is not limited to,
(a) ending or threatening to end a public servant’s employment or appointment; (b) disciplining or suspending or threatening to discipline or suspend a
public servant; (c) imposing or threatening to impose a penalty related to the employment or appointment of a public servant;
(d) intimidating or coercing a public servant in relation to his or her employment or appointment. 2006, c. 35, Sched. A, s. 139 (2). Complaint about reprisal
140. (1) A public servant described in subsection (2), (3) or (4) may complain under this section that he or she has suffered a reprisal prohibited by section 139. 2006, c. 35, Sched. A, s. 140 (1). …
Public servant not subject to collective agreement (3) A public servant employed under Part III who is not subject to the terms and conditions of a collective agreement may file the complaint
with the Public Service Grievance Board. 2009, c. 33, Sched. 17, s. 10 (15). Excerpt from Regulation 378/07 under The Public Service of Ontario Act
4. (1) Subject to subsection (2), a public servant who is aggrieved about a working condition or about a term of his or her employment
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may file a complaint about the working condition or the term of employment with the Public Service Grievance Board, (a) if the public servant is eligible under sections 5 and 7 to file such a complaint; (b) if the public servant gives notice in accordance with section 8 of his or her proposal to file the complaint; and (c) if the public servant complies with the filing requirements set out in section 10.
… Filing a Complaint Notice of proposal to file a complaint
8. (1) A person who proposes to file a complaint shall give notice of the proposal to the following person or entity: 1. A complainant who, at the material time, worked in a ministry shall
give the notice to his or her deputy minister. … (2) Subsection (1) does not apply with respect to a complaint under
Part V of the Act (Political Activity) or a complaint under Part VI of the Act (Disclosing and Investigating Wrongdoing). O. Reg. 378/07, s. 8 (2). (3) The notice must set out the reasons for the complaint. O. Reg.
378/07, s. 8 (3). (4) The notice must be given within the following period: 1. For a complaint about dismissal for cause, within 14 days after the
complainant receives notice of the dismissal. 2. For a complaint about a disciplinary measure, within 14 days after the complainant receives notice of the imposition of the disciplinary measure.
3. For a complaint about a working condition or a term of employment, within 14 days after the complainant becomes aware of the working condition or term of employment giving rise to the complaint. O. Reg. 378/07, s. 8 (4).
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(2) Subsection (1) does not apply with respect to a complaint under Part V of the Act (Political Activity) or a complaint under Part VI of the Act (Disclosing and Investigating Wrongdoing). O. Reg. 378/07, s. 8 (2).
(3) The notice must set out the reasons for the complaint. O. Reg. 378/07, s. 8 (3). (4) The notice must be given within the following period: 1. For a complaint about dismissal for cause, within 14 days after the
complainant receives notice of the dismissal. 2. For a complaint about a disciplinary measure, within 14 days after the complainant receives notice of the imposition of the disciplinary measure.
3. For a complaint about a working condition or a term of employment, within 14 days after the complainant becomes aware of the working condition or term of employment giving rise to the complaint. O. Reg. 378/07, s. 8 (4).
Period for dispute resolution 9. (1) A complainant is not entitled to file a complaint with the Public Service Grievance Board until expiry of the period provided under this
section for dispute resolution. O. Reg. 378/07, s. 9 (1). (2) Subsection (1) does not affect the right of a public servant or other person to file a complaint under Part V of the Act (Political Activity) or a complaint under Part VI of the Act (Disclosing and Investigating
Wrongdoing). O. Reg. 378/07, s. 9 (2). (3) If the complainant was required to give a deputy minister notice of the proposal to make the complaint, and if the deputy minister or his or her delegate meets with the complainant within 30 days after the
deputy minister receives the notice, the period provided for dispute resolution expires on the earlier of, (a) the day that is 30 days after the meeting; or
(b) the day on which the deputy minister gives written notice to the complainant of his or her decision about the proposed complaint. O. Reg. 378/07, s. 9 (3). (4) If the complainant was required to give the chair of the Public
Service Commission notice of the proposal to make the complaint, and if the chair or his or her delegate meets with the complainant
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within 30 days after the chair receives the notice, the period provided for dispute resolution expires on the earlier of, (a) the day that is 30 days after the meeting; or
(b) the day on which the chair gives written notice to the complainant of his or her decision about the proposed complaint. O. Reg. 378/07, s. 9 (4). (5) If the deputy minister or chair of the Public Service Commission, as
the case may be, or his or her delegate does not meet with the complainant within 30 days after receiving the notice, the period provided for dispute resolution expires 30 days after the notice was given to the deputy minister or chair. O. Reg. 378/07, s. 9 (5).
Filing a complaint 10. (1) Within 14 days after the expiry of the period, if any, provided for dispute resolution under section 9, the complainant may file the complaint with the Public Service Grievance Board by delivering it to
the chair of the Board. O. Reg. 378/07, s. 10 (1). (2) The complaint must set out the reasons for the complaint and must include the notice of the proposal, if any, to make the complaint and such other information and documents as the Board may specify. O.
Reg. 378/07, s. 10 (2). Excerpt from Regulation 977, under the Public Service Act, now superseded
54. The Board or a Classification Rating committee may, of its own motion,
(a) abridge the procedure set out in this Part and hear the grievance at any time under section 48: or
(b) extend the time limits specified in this Part, RO 1980, Reg,
881, s. 61.
Excerpt from the Board’s rules
10.The Board shall compile a record of any proceeding in which a hearing has been held which shall include:
q. any application, complaint, reference or other document, if any, by which the proceeding was commenced;
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b. the notice of any hearing;
c. any interlocutory orders made by the tribunal;
d. all documentary evidence filed with the tribunal, subject to any limitation expressly imposed by any other Act on the extent to or the purposes for which any such documents may be used in
evidence in any proceeding;
e. the transcript, if any, of the oral evidence given at the hearing; and
f. the decision of the tribunal and the reasons therefore, where reasons have been given.
Practice Note #1
Dismissal of Complaints without a Hearing
Upon receipt of a complaint the Public Service Grievance Board
(the Board) may on its own volition or on the request of a party screen a complaint for jurisdiction before listing the complaint for hearing. The Board may dismiss the complaint without a hearing or consultation when it appears on the face of the complaint that the Board is without jurisdiction to hear the complaint because the
complainant is not a public servant under the jurisdiction of a Deputy Minister (see P0037/92 Rampersad and WCB, P006/87 Pelissero and GO Transit and P0045/93 Wells/Larson and the LCBO) or the Board is without jurisdiction to grant a remedy (see P0144/95 Laird et al, P0050/95 Blakney et al, P0024/99 Armstrong
et al and P0025/99 Easto et al), even if all the facts stated in the complaint are assumed to be true.
However, when the Board deems it necessary, the Board may request and set a date for receipt of further particulars, information
or submissions regarding the complaint.
When the Board requests and sets a date for receipt of further particulars, information or submissions regarding the complaint, the Board may:
1. dismiss the complaint without hearing, if the particulars, information or submissions regarding the complaint are not received by the Board on the date set;
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2. decide that there is a need for a hearing to deal with any issue regarding its jurisdiction;
3. request further submissions from the parties before deciding whether or not to hold a hearing;
4. dismiss the complaint without a hearing when the Board has
determined it is without jurisdiction to hear or grant a remedy based upon its review of the particulars, information or submissions regarding the complaint.
Excerpts from the Statutory Powers Procedures Act
Waiver of procedural requirement
4. (1) Any procedural requirement of this Act, or of another Act or a regulation that
applies to a proceeding, may be waived with the consent of the parties and the tribunal. 1997, c. 23, s. 13 (1).
(2) Any provision of a tribunal’s rules made under section 25.1 may be waived in accordance with the rules. 1994, c. 27, s.56 (7).
Hearings to be public, exceptions
9. (1) An oral hearing shall be open to the public except where the tribunal is of the opinion that,
(a) matters involving public security may be disclosed; or
(b) intimate financial or personal matters or other matters may be disclosed at the hearing of such a nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interests of any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public,
in which case the tribunal may hold the hearing in the absence of the public. R.S.O. 1990, c. S.22, s. 9 (1); 1994, c. 27, s. 56 (16).
Written hearings
(1.1) In a written hearing, members of the public are entitled to reasonable access to the documents submitted, unless the tribunal is of the opinion that clause (1) (a) or (b) applies. 1994, c. 27, s. 56 (17).
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Electronic hearings
(1.2) An electronic hearing shall be open to the public unless the tribunal is of the opinion that,
(a) it is not practical to hold the hearing in a manner that is open to the
public; or
(b) clause (1) (a) or (b) applies. 1997, c. 23, s. 13 (14).
Appendix B Authorities referred to by the parties
In respect of the preliminary objections:
1. Part V – Grievance Procedure - Public Service Act, Reg. 977 [since repealed].
2. (a) Public Service of Ontario Act, 2006, Ontario Reg. 378/07- Public Service Grievance Board: Complaints and Hearings.
2. (b) Public Service of Ontario Act, 2006, S.O. 2006, C.35, Sched. A, s. 108, s. 139 –
140 – Part VI: Disclosing and Investigating Wrongdoing.
2. (c) Public Service of Ontario Act, 2006, Ontario Reg. 383/07 – Ethics Executive: Additional Powers, Duties and Functions under Part IV of the Act.
3. PSGB Rules and Practice Notes – Practice Note #1 – Dismissal of Complaints
without a Hearing. 4. S.E.I.U., Local 204 v. Leisureworld Nursing Homes Ltd., 70 A.C.W.S. (3D) 281. 5. Hall v. Beachamp, 2010 CLB 2419; 2010 CanLII 6691 (ON LRB), 2010 CanLII
11287 (ON LRB). 6. St. Amant (Complainant) v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), PSGB No. P-2012-0601, January
31, 2013; 2013 CanLII 4673 (ON PSGB) (Carter).
7. Bourgeault (Complainant) v. The Crown in Right of Ontario (Ministry of
Community Safety ad Correctional Services), PSGB Nos. P-2012-3326, P-2012-3327, November 14, 2013; 2013 CanLII 84294 (ON PSGB) (O’Neil).
8. Martin Ois (Complainant) v.The Crown in Right of Ontario (Ministry of Community
Safety and Correctional Services), November 13, 2014; 2014 CanLII 76835 (ON PSGB) (O’Neil).
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9. Donn Burkholder (Complainant) v. The Crown in Right of Ontario (Ministry of
Community Safety and Correctional Services), PSGB No. P-2013-0846, November 8, 2013; 2013 CanLII 84293 (ON PSGB) (Carter). 10. Oral Binda (Complainant) v. The Crown in Right of Ontario (Ministry of
Environment), PSGB No. P-2011-2193, March 9, 2012; 2011 CanLII 93306 (ON PSGB) (O’Neil). 11. Ontario Public Service Employees Union (Halsall) v. The Crown in Right of
Ontario (Ministry of Agriculture, Food and Rural Affairs), GSB Nos. 2007-1045,
2007-3394, February 3, 2009, 2009 CanLII 15420 (ON GSB) (Briggs). 12. LaFreniere (Complainant) v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services, PSGB No. P-2007-1322, August
27, 2008; 2008 CanLII 70542 (ON PSGB) (O’Neil).
13. Burt (Complainant) v. The Crown in Right of Ontario (Ministry of Community
Safety and Correctional Services) PSGB No. P-2010-1988, March 3, 2011; 2011 CanLII 23300 (ON PSGB), (O’Neil).
14. Smith et al (Complainant) v. The Crown in Right of Ontario (Ministry of
Community Safety and Correctional Services) PSGB No. P-2012-4155, July 9, 2014; 2014 CanLII 48098 (ON PSGB) (O’Neil). 15. Mario Laforest et al (Grievors) v. The Crown in Right of Ontario (Ministry of
Community Safety and Correctional Services) PSGB No. P-2007-1679 et al, July 21, 2008; 2008 CanLII 70541 (ON PSGB) (O’Neil). 16. Girling (Grievor) v. The Crown in Right of Ontario (Ministry of Community Safety
and Correctional Services) PSGB No. P-0013-98, May 8, 2002; 2002 CanLII
45638 (ON PSGB) (Leighton) 17. A Grievor v. The Crown in Right of Ontario (Ministry of Health), PSGB No. P/14/90, September 8, 1995 (Springate).
18. Ontario Public Service Employees Union (Grifferty) v. The Crown in Right of
Ontario (Ministry of Government Services), 2012 CarswellOnt 12872, 112 C.L.A.S. 245; 2012 CanLII 67527 (ON GSB) (Devins). 19. Neill Haines (Applicant) v. Cameron Steel Inc., (Responding Party), [2011]
O.L.R.D. No. 207; 2011 CanLII 25381 (ON LRB) (C. Murray). In respect of transcription of hearings 20. Ontario (MTO) v. OPSEU (Finnan) 2009, 97 CLAS 134
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21. Children’s Hospital of Eastern Ontario v. OPSEU, 2014 CanLII 40165 (ONLA) (Parmar) 22. Clarke Institute of Psychiatry v. ONA (1995) 45 LAC (4TH) 284
23. Stelco Inc., Hilton Works v. USWEA, Local 1005 (1988) 2 LAC (4TH) 219 24. Canada Post Corp v. CUPW (2009) 185 LAC (4th) 379 25 Canada Broadcasting Corporation v. CUPE (1991) 22 LAC (4TH) 9
26. Mosaic Potash Colonsay ULC v. USW (Jansen), 2015 CanLII 77883 (SKLA) (Hood)