HomeMy WebLinkAbout1982-0241.MacAlpine.82-11-18IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
Before:
For the Employer:
For the Grievor:
Hearings:
OPSEU (D. A. MacAlpine)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Natural Resources)
Employer
E. B. Jolliffe, Q.C. Vice Chairman P. D. Camp Member S. H. Hennessy Member
C. G. Riggs Counsel
Hicks, Morley, Hamilton,
Stewart & Storie
Barristers & Solicitors
A. Ryder, Q.C.
Counsel
Cameron, Brewin & Scott
Barristers & Solicitors
_ -;,.. August 30 and 31, 1982
September 29 and 30, 1982
DECISION
On March 31, 1982, Mr. Donald A. MacAlpine..grieved
that "I have been unjustly dismissed," and requested "full
reinstatement with no loss of pay or credits." The case
was heard at Toronto on August 30 and 31 and September 29
and 30, when the grievor was represented by Mr. A. Ryder,
Q.C. and the employer by Mr. C.G. Riggs.
During the course of the hearings many exhibits
were filed on consent'and others were identified by witnesses.
A total of 48 exhibits containing many hundreds of pages
relate mainly to the law,~ policy and procedures under which
licences are granted to cut timber on Crown Lands in
Ontario, the context in which a prolonged dispute arose
between the griever and several of his superiors resulting
eventually in his dismissal on March 30, 1982. ~..,..,
The grievor, a graduate of Lakehead University,
is a registered professional forester. After several years
of experience in the private sector he was first employed
by the Ministry of Natural Resources in ianuary, 1981, at
which time he took the "Oath of Office and Secrecy" (pre-
scribed by Section 10(l) of the Public Service Act) in the
following words:
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I,DCNALDWURRAYMACALPINEdo~arthatIwill
faithfully discharge my duties as a civil servant and
will observe @ comply with the laws of Canada and
Cntario, ad, except as I maybe legally required, I
will notdisclose or give to any parson any infor-
mation or d ccumant that comas to my knowle@e or poss-
ession by reason of my being a civil servant. So help
me Gai.
The griever became a Un,it Forester in the Nipigon
~District of the North Central Region, which has its head-
quarters at Thunder Bay. His immediate supervisor was Mr.
George Marek, Forest Management Supervisor, who in turn
was responsible to Mr. G.O. Koistinen, the Nipigon District
Manager. Mr. Koistinen answered to the Regional Director
or his Deputy at Thunder Bay. It should be kept in mind,.
however, that forest management is not. the only function of
the Ministry~. Mr. Koistinen is assi-a:ted by a Planner and
Supervisors responsible for Administration; Fish and
Wildlife; Lands, Parks and Recreation.; Field Services, as
well as Forest Management. There are officers in similar
capacities at the Regional Office and at the Ministry's .
'base in Toronto. Overall direction is of course given by
the Deputy Minister, who can call on the help of various
specialists, such as the officer in charge'of Crown Timber
Sales.
It emerged at the hearings in this case tha,t the,
two learned counsel had widely divergent views of the issue
or issues to be determined. Thus Mr. Riggs, couns,el for the
employer called o,nly one witness, Mr. Edwards Markus, who
directs Crown Timber Sales from his office in Toronto. The
testimony of this witness was helpful in explaining policies
and procedures in. relation to the granting of licences, but
he had only ,a peripheral involvement in the circumstances
surrounding.the griever's alleged misconduct. Counsel
relied almost entirely on'documentary evidence --- and the
testimony of the griever himself --- in support of the
employer's view that the griever had acted in breach of his
"Oath of Office and Secrecy" and in gross violation -bf the
Ministry's Code of Ethics.
On the other hand,. Mr. Ryder, counsel for the
grievor,.while not disputing the facts on which the employer
relies, submitted that the griever's conduct was completely
justifiable. Thus he built his case on allegations that.
improper pressures had been brought to bear on the griever
to facilitates a discriminatory grant of a licence to Buchanan
Forest-Products Limited (hereinafter called BFPL) on the basis
of data which the griever and his supervisor considered
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inadequate; further that Ministry officials had acted con-
trary to the requirements of the~~Ministry's own poiicy as
well as the Crown Timber Act: further that it was not in
the public interest to keep the dispute secret, and finally
that the vague language of the "Oath of Office and Secrecy"
should be given a reasonable and.liberal interpretation
consistent with declarations in favour of "open government"
by the Premier of the Province and one of his Ministers.~-,
Since the problem has been approached from two
different (and probably irreconcilable) directions, it is
only fair to particularize the positions chosen by the
parties and also to summarize the facts as they were es-
tablished in evidence.
The Ministry's decision to dismiss Mr. MacAlpine
was not taken in haste. His alleged misconduct had been
known in November, December and January. The dismissal
letter, Exhibit 6, signed by Deputy Minister W.T. Foster
and dated March 24, 1982 (but to be "hand delivered") was
as follows:
.:
/1 .,,:j i:.,.~.:
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I have now had the opportunity to review the report an3
mxmendations of Wr. J.E. Hamilton who was authorized
by me to hold a tearing to inquire into the question of
whether there existed cause foryourdismissal from em-
plcyment in the plblic service.
I am of the opinion that there exists cause for your dis-
missal md I must advise you that you are hereby dismissed
frcmyouremploymentas a p3blic servant-n receipt of'
this letter. 'Ihe reasons for your dismissal are that you
LnpropsrlycmmnicatedMinistry information anddccuments
wtiichcameto ycurknowledge ard possessionby virtue of
your beingacivilservant to outside parties without
authorization in breach of your oath of office and
secrecy and in violaticn of the Ministry's Cede of
Ethics.
Y~J are advised of your right to file a grievance with
respect to your dismissal in accordance with the applic-
able provisions of the collective agreement.
Itwas made apparent by other exhibits (as well as
the testimony of the griever himself) that the communications
referred to i,n the second paragraph of the Deputy Minister's
letter were those set out in Exhibit 3Ml. That document
was a letter addressed to the griever summoning him to an
enquiry held within the Ministry on February 16, 1982,
stating two charges, as follows:
It is alleged that you violated your Oath of Office and
Secrecy by providing copies of the follcwing correspndence
to Wr. J. Stokes without authorization.
(1) letter dated April 22, 1981 from Wr. W.T. Foster, Deputy
Minister to Wr. A.F. Fleming, Vice President, Dcmtar Forest
Pr&ct.s .
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(2) nxamorandum dated June 5, 1981 from L4r. W.T. Foster,
Deputy Minister to Mr. G.A. Mcolrmack, Assistant Deputy
Minister.
In addition, it is also alleged that you enclosed Ministry
correspondance without authorization in a letter dated
January 1, I.982 to the Qltario Professional Foresters
Association.
In fact, as the grievor himself candidly stated at
the enquiry'on February 16, and again in his testimony before
this Board on August 30 and 31, he did communicate information
and documents to other persons as alleged in Exhibit 3Ml.
The first document mentioned, Exhibit 3M13, was
written by Deputy Minister Foster to Mr. A.S. Fleming, Vice-
President of Domtar Forest Products. Dated April 22, 1981,
it was as follows:
Thank you for your letter of 81 04 01, expressing the interest
of kmtar in intensive forestry. We both can look forward to
the results of such practices on the Lhntar F?4A area.
Thetownshipsof Bele, Stirling, Lyon, Dorion ti portions of
McKaster ad Carrigal which you request be added to the EMA
area,arepartofthePortArthurQownManagementUnit. In
general, during the Process of establishment of EMA areas, we
endeavour to maintain the integrity of the Crown management
units. ibis pint has hen made, I believe, on several
occasims in discussionswith the forestirdustry.
Cne of the reasons for this Position is that on&se units,
the Crown has various conanitmsnts and this is true for the
Port Arthur unit. ~For this reason, and at this time therefore,
the Ministry cannot consider the addition of these townships
to tk,Dmtar FMA area.
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I am pleasedthat Domtar is Fepared to undertake a forestry
assistance program for freehold lards within a radius of 25
miles of the Red Rockmill. lha Ministry is prepared to offer
encauagementaxi I wuld ask that you discllss your plans in
advance with the Regional Director ard District staff for the
areas involved.
As you are aware, a s*yofprivatelandforestsis u&-y,
and till be completed by the end of December 1981. It knxlld
seem appropriate to hold off on any such programs in northern
Q7tari.o untilscme of the basic information from that study
is available.
The second document mentioned, Exhibit 3M14, was a
memorandum sent by Deputy Minister Foster to Mr. G.A.
McCormack, Assistant Deputy Minister, Northern Ontario.
Dated June 5, 1981, and headed "Re: K.Buchanan --- Sapawe
- Mill Wood SupplyU it read as follows:
I met with Mr. Buchanan recently ard discussedhis progress
to date in aggregating sufficient &ditionalvolumes of wxd
to provide the Sapawa mill with along term adeguate wood
=wlY *
Mr. Bxhanan has requested, through the appropriate District
Gffices, that any unallocated coniferax allowable cut in the
Crown management units in +Ihunder Bay 3-d Nipigon be allocated
to him fordirectuse at Sapaw or as materialto trade with
otherlice-SforkDCdthat~uldbedirectedto~.
As you know, the Ministry has placed an extremely high priority
on establishing an adequate u~cd supply for the Sapawa mill.
I believe kr-. Brhanan is bringing a flexible and dynamic
approach to the situation kretofor lackirq.
tild you please assure that your field offices.are viewings
Mr. Rxhanan's request as one of top priority arxl that
wherever possible and reasonable that he be assisted in his
attempts to solve this particular wxd supply problem.
:
. _
.: : --.. : .
-a-
In his capacity as a unit forester at Nipigon, the
grievor had access to copies of both documents.- From them
he drew the inference that, when read together, they revealed
an improperly discriminatory.attitude in relation to Mr.
Buchanan and his company, BFPL. He thought that while there
might be valid reasons for rejecting the' Domtar overtures,
there was no justification for requiring Ministry staff to
give the Buchanan request "top priority."
The griever's suspicions were fortified when Mr.
Buchanan embarked on a vigorous campaign in favour of cutting
rights on the Black Bay peninsula, disputing the opinion of
Mr. MacAlpine and his supervisor that the timber there
avai-iable was neither adequate nor suitable for anything more
than a one-year "liquidation cut." Further, the grievor
claims that he and his supervisor were subjected to pressure
(over a period of many weeks) by Acting Regional Di.rector
L.M. Affleck, the Acting Assistant Regional Director, D.E.
McHale, and Regional Forester, J.T. Rudolph, such pressure
being exerted to induce him to make more favourable estimates
or calculations of the available wood, contrary to the limited
data gathered by.himself and other members of the Nipigon staff
and contrary also to the "sustained yield" policy laid down
i
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by the Crown Timber Act, the regulations thereunder and the
Ministry's Manual of Forest Management, Exhibit 32.
The grievor further states (with some corroboration
from his supervisor1 that BFPL needed a licence showing a
substantial cut available for several years in support of
its application for a bank loan of more than $3,000,000 to
enlarge the capacity of the Sapawe mill. The grievor argues
that to obtain such a loan on the basis of misleading infor-
mation is a kind of fraud in which he could not acquiesce.
Moreover, the grievor says that on November 23, 1981, he was
given until December 7 to produce for hissuperiors more
favourable estimate's or.calculations of available wobd in the
Black Bay peninsula. It was for these reasons, the grievor
has testified, that on the night of November 23 he,gave the
two documents (Exhibits 3M13 land 3M14) and explanatory infor-
mation to Mr. Jack Stokes, member of the Legislature for ~
Lake 'Nipigon, who agreed to write a letter about it to Hon.
Alan Pope, Minister of Natural Resources. The grievor did
not himself release documents to the press, although a number
of reports andcomments thereon subsequently appeared in
Thunder Bay newspapers: Exhibits 3M2 to 3M7 inclusive.
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The second offence alleged is that Mr. MacAlpine
sent copies of the two documents (and much other information
about the dispute) in the form of a "Report," Exhibit 3M15,
to the Ontario Professional Foresters Association. The
covering Letter, dated January 1, 1982, requested that
(pursuant to the by-laws of the Association) l*consideration
be given to the expulsion of the following members of this
Association": --- naming Messrs. Foster, Affleck, MCHale and
Rudolph. There is no evidence before this Board as to the
disposition of that-complaint, which in effect charged four
of the griever's superiors with unethical and unprofessidnal
conduct,~:
On his part, counsel for the employer argues that
the inference and conclusions d,rawn by the grievor were and
are wholly unwarranted, and that in any event, he had no
right to pass judgment on the well-founded views and decisions
of superiors to whom he owed respect and loyalty. There were,
counsel pointed out, very good reasons for the Ministry's
desire Fn the public interest 'to assure the BFPL mill at
Sapawe of a better supply of wood. The explanation (according
to the testimony 'of the witness Markus) is as follows..
The Sapawe mill, located near Atikokan, had been
built and operated in earlier years by J.A. Mathieu. When
he failed, it was bought by-:Domtar, which obtained about
60,000 cubic feet per year from the Quetico Provincial Park.
However, about a decade ago the Government ended logging
operations in the park and Domtar had to turn elsewhere for
wood. Great Lakes Forest Products was directed by the
Ministry to negotiate a trading arangement .with Domtar,
but no agreement resulted.
BFPL bought the Sapawe mill from Domtar in March, '*'..~.l.'O~.-
1981. Mr. Buchanan interviewed the Deputy Minister and Mr.
Markus at Toronto to explain his plans. He needed $3.2
million to modernize the mill and he also needed more wood, **
~which would result in higher production and more employment
in an area suffering from the loss of its two major indus-
2:' tries, Steep Rock Iron Mines and another mine. The Minis-
try was sympathetic to his needs. The Ministry, Mr. Markus .
said, was also impressed by Mr. Buchanan's success with
many of his other undertakings, which had made his company
one of the nine largest operators in the industry. Domtar's
overtures had been rejected because it was not policy to
include Crown Management Units in an area which was to
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..:.... become subject to a Forest Management Agreement, Thus,
Mr. Markus said,the letter to Domtar in April had "nothing
to do" with the Ministry's desire to encourage the BFPL
expansion. Mr. Markus said also that the Deputy Minister's
memorandum to Mr. McCormack of June 5 had been drafted by
himself on Mr. Foster's instructions.
Tt can be added that when controversy erupted in
-.-~January , 1982, the Reeve of ktikokan protested in the press
(Exhibit 3M7) that his community had a 15 per cent unem-
‘,‘.. ployment rate, and the Reeve took issue with critics of the
-BFPL plan to cut wood in the Black Bay Peninsula. By that
t&me it had become clear that those who favoured more wood
._ :
I
for the Sapawe mill had legitimate reasons for their con-
tern, but it was equally clear that more wood could come
.~.i ,:'.',J --I only from an area found to possess standing timber of
.,,; .:c.., 4 '.'.. ,k.<;' sufficient quality and volume to sustain an adequate supply ..~I,: ..:y for at least a few years. From these conflicting consider-
.: ations arose the dispute between the grievor and several
of his superiors in the Ministry.
To recapitulate, the employer's case against the
grievor is essentially that he acted unethically and in
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violation of his oath by releasing documents and information
without authorization: on the other hand the defence is
that the griever acted in good faith and in the public
interest by exposing misconduct on the part of severa
officials in the Ministry.
The issue in this case is of course whether there
was "just cause" for dismissal. To determine that issue
this Board must consider not only the evidence tendered
for the employer but also the evid~ence of the griever and
two other witnesses in respect of events which occurred be-
tween March, 1981, .and January, 1982. Mr. Markus, the
only witness called by Mr. Riggs, had no f'irst-hand know-
ledge of.what had occurred at Thunder Bay and Nipigon. Thus
the testimony as to those events given by the griever, Mr.
MacAlpine-, stands uncontradicted, and in many respects is
confirmed by the testimony of his supervisor, Mr. George _
Marek, given under subpoena.
An extreme view of a public servantIs obligation
of confidentiality would be that the Oath of Office and
Secrecy must be literally interpreted and that no dis-
closure whatever in any circumstances can be made without
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authorization --- even if the employee becomes aware that
a superior is breaking the law OCR is about to do so. We
do not understand that the employer or its counsel, Mr.
Riggs, has adopted such extreme and unreasonable positions.
On the contrary, Mr. Markus (who directs Crown Timber Sales)
said he "uses discretion" in revealing information from
within the Ministry. It appears that "discretion" is the-~.
key word. Referring to the letter to Domtar, Mr. Markus
"did not ~think it wasvery confidential stuff." As for
the memorandum to Mr. McCormack, of June 5, it was "not
very newsworthy" in his ,opinion because the Rinistry's
concern about the pressing need of the Sapawe mill was
"no secret."
Nevertheless, Mr. Riggs emphasized in argument
that the unwarranted ,inference drawn by the grievor from
the two documents (Exhibits 3M13 and 3M14) bulked large in
the dispute between the grievor and his superiors. In
that context, it became important to treat their contents
with the utmost discretion. Mr. Riggs submitted that in
all the circumstances release.of the documents went far .~
beyond the limits of discretion and must have been intended
to provoke and inflame the bitter controversy~which ensued.
i /
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To assess the validity of that submission, a review of
the griever's evidence is unavoidable.
At the outset,.however, we wish to set aside as
'irrelevant and immaterial two questions. which received un-
due and repeated mention at the hearings in this case.
One was raised by the griever and the other by Mr. Riggs.
The griever said that Mr. Buchanan had the repu-
tation of being a prominent supporter, financially and
otherwise, of the party in power at Queen's Park, implying
that favouritism had been shown for that reason. He com-
plained also-that Mr. .Buchanan often dealt with the
Ministry in Toronto rather.than with foresters in the field
who had the responsibility of reporting and making recom-
mendations on applications for licences to cut timber. In
our view, an applicant's political affiliation, if any, is
wholly irrelevant. A licensee or applicant for a licence i ~..
is as free as any other citizen to, support the party of his
choice and no inference of impropriety can fairly be drawn
from the exercise of that choice. Further, .it was not
improper for Mr. Buchanan to discuss his problem and his
rather ambitious plans with.the Ministry at the highest
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level in Toronto. As one of the nine largest operators in
the industry, it was natural that he should do so, just as
it was natural for a large company like Domtar to corres-
pond directly with the Deputy Minister.
On his part, Mr. Riggs stressed the fact that
the griever had given the two documents, Exhibits 3M13 and
3M14, and also explanatory information to an,.opposition
member of the Legislature, implying that to deal with an
opposition member is a betrayal of the loyalty due to the
Government and people of Ontario. This question too is
wholly irrelevant and.reflects a confused understanding of
the constitutional role of elected members. The correct
attitude --- with no partisan distinctions --- was clearly
explained by the Premier of Ontario,on October;3, 1980,
when he wrote all Ministers (with guidelines for civil
servants in communicating with the public) advising them
"to encourage open and responsive behavior among public
servants in their da~ily dealings with the public, particu-
larly including Members of the Legislative Assembly and
representatives of the news media." The Premier's letter
(subsequently tabled in the House by Hon. Alan Pope, then
Ministerwithout Portfolio) forms part-'of Exhibit 4 in this .~.
case.
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For the foregoing reasons, the political refer-
ences and aspersions mentioned by the grievor and Mr.
Riggs must be regarded as irrelevant and immaterial and
carry no weight whatever.
We turn now to the griever's account of his
experiences between March, 1981, and February, 1982, in
relation to the Black Bay controversy.
In March, 1981, the grievorhad only three
.- months of experience with the Ministry. However, from
previous years of service with Boise-Cascade and other
companies he was familiar with the Ministry's licensing
proceedures. These have been explained to the Board~by
the first witness, Mr. Edward Markus. The general /_-:
objective is to harvest timber from Crown lands on the
basis of "sustained yield," which is defined in the
Ministry's "Manual of Forest Management Plan Requirements"
(Exhibit 32) as follows:
A.policy, method or plan of management implying continuous
production with the aim of achieving, at the earliest
practical time and at the highest practical level, an
approximate balance between net growth and harvest,
either by annual or longer periods:
.' :
Mr. Markus specified four different kinds of.
licences granted under, the Crown Timber Act:
(1) Fuelwood permits, of which there are
thousands;
(2) District Cutting licences, which may be
issued for one year only, limited to 160 acres;
(3) Licences authorized by Order-in-Council'
(on the recommendation of Regional or District officials)
for periods varying from one t0 21 years, USUally granted
to.pulp and paper companies or sawmill operators --- the
type of licence sought by BFPL~in 1981, although no formal
application was actually filed in that year; "
(4) Forest Management Agreements,a.recent inno-
vation, involving long-term management of a large area by
one company and providing for regeneration with a views to
_-. achieving permanent sustained yield, an example being the
agreement still being negotiated by the Ministry with Mom-
tar early in 1981.
Before a license is granted there are essential
preliminary procedures to be followed as set out in detail
by the.MinistrY's manual. There must be a,.'~Man.agement Plan
--- for which Ministry personnel are responsible. It must ~.,..
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be prepared under the supervision of ,a professional forester
--- defined insection 1 of the Crown Timber Act as "a
person registered under The Ontario Professional Foresters
Association Act, 1957." There must also,be an Annual Plan .~.
and calculations of the "Allowable Cut," which is defined
in the Manual as follows:
zk amount of forest produce, bowsoever.measured, that can
be cut in a given period urder sustained yield mamgenent.
Obviously, such plans and calculations require
considerable knowledge of the forest stands proposed for
cutting. This was the probl~em faced by the grievor and
his supervisor in the spring and summer of.1981, when they
_ .._... were required (on:xather short notice) to-report on poten-
tial production from stands on the Black Bay Peninsula.
The starting-point for calculations and planning
is the Ministry's Forest Resources Inventory, referred to
as FRI. Mr. Markus testified that "errors in FRI are common
across the province," and that "much of it is based on aerial
photos." The griever said experts such as Mr. W.L. Plonski
had estimated the average margin of error to be approx-.
imately 30 per cent. From his own observations of the
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Black Bay Peninsula, the grievor was convinced that the
FRI for that area was outdated and grossly inaccurate, a- _
view supported by his supervisor and their crews.
According to Mr. Markus, the procedure also requires :._: ,i~;.,,: the selection of tracts allocated for cutting over a 20-year
gs$* F:Z @?+ ?;i
period, and finally "operational cruisingI' to verify or
$4 correct calculations. Operational cruising involves visua
.-;:;& ,. .?i inspection from the ground by a forester and forestry
technicians. The grievo,r attached importance to cruising
and thoughtitwould take two or three months to complete
a satisfactory inspection of the Black Bay Stands. As for
Mr. Markus, he said that estimates made from a helicopter
were "not accurate." dn this point, although Mr. Markus
was not directly involved in the Black Bay controversy, his
view as to the pr.oper approach does not seem to differ'from
that of the grievor.
On March-31, 1981, Mr.Mike Auld and a colleague
from BFPL met with District Manager Koistinen. The
Ministry was also represented by Mr. George Marek, the
District's Forest Management Supervisor, and the griever,
who had just taken over responsibility for one of the three
.
i i
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units in Mr. Marek's jurisdiction. Minutes of the meeting,
Exhibit 8, open with the following paragraph:
Mike Auld indicated B.F.P.~'s interest in consolidating a
wxd supply for their Sapawe mill. Present licenses in
the Atikokan area have an Annual Allowable Cut of about
50,000 axds. An aslitional 40,000 cords is needed to
, yt mill reguirements. lb meet this goal, B.F.P. is
rnterested in volume trade-offs with firms presently
holding other licensed areas and/or obtaining a conunit-
ment for crown lards notpresentlylicensed. In the
Nipigon District, these latter areas hould include:
il McIntyre Bay Peninsula (Lake Nipigon)
ii1 Black Bay Peninsula (Lake Superior)
iii,) bale -ship
iir) -ship 92 (Corrigal 'Ibwnship)
B.F.P. hould like a license for direct delivery from these
areas or touse volumes from these areas for trade-off
.prpses.
There followed a iively discussion in whgch Messrs
Koistinen and Marek said "the Black Bay Peninsula was pres-
ently out of the question for other considerations until
Domtar's F.M.A. is signed". (They were not aware that Dom-
.i~
tar's overtures were about to be rejected.) Mr. Auld com-
plained of "land-grabbing" by other companies and asked about
"the next level in the M.N.R." to which'he should make
enquiries. He also said that the Peninsula required road
development, to which Mr. Marek responded that "volumes
present in this area-do not justify a permanent road.!' Mr.
: . .
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Koistinen agreed and spoke of "other concerns and pressures
on the area" --- presumably.referring to Fish and Wildlife
conservation and perhaps to suggestions that the area should
become a park, also mentioned by Mr. Marek. It is clear that
the meeting was not encouraging from the BFPL point of view.
Mr. Auld on April 6 wrote the following letter,
Exhibit 9, to Mr. Koistinen:
~dosed with this letter is the map we promised to send
to you at our meeting c&March 31.
EWhanan Forest Products wishes to apply for along-
term lice-ice to at the areas outlined in yellow on
this map. The 'sawlogs from these areas will be
delivered to the sawnill in Sapawe. All other prcduc-
tion till be sold to mills in the surrcunding area.
lhank~you for taking the time to msettith us, and
wa hope to hear from youconcerning this application
at a later date.
On April 13 Mr. Marek replied to Mr. Auld, Exhibit ~_
9A. in a letter beginning as follows:
'It&s is to your letter of 1981.04.06, sod our meeting of
1981.03.31 in our Nipigon Office.
Consideration cannot be given to your request to establish
a lorg term operation on Black Bay Peninsula. The reasons
for this are as follows: ~~'~
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I
A) lb wluskas of wocdon Black Bay Peninsula according
to several investigationsare very marginal. ?he over
matured wocd in the area representing *ite pine, White
spruce andwhitebirch, is to alargedegree,decadent.
We feel that the majority of these stands should be re-
classified to balsam workiq group.
B) The establishwntof a pa-ent access is conflicting
seriously With otbar uses of the forest lard, suchas Fish jl.
and Wildlife and Lads.
C) lhs Ministry wuldnotjustify wnstruction of the
high priced permanent road under the D.R.E.E. subsidies.
. . . . .
The next document on record is Exhibit 10, a mem-
orandum from the griever to District Manager Koistinen,
with a copy to Mr. Marek. As it explains fully the position
taken by the griever in May and in ensuing months it is
worth quoting in full:
QI May lst, 1981, a reconnaissance flight was wnducted With
G.T. Marek ard L. WorraJ over Black Bay Peninsula to determine
the availability of timber on this portion of the 'Fort Arthur
Manag-t tit (P.A.M.u.). lbe results of this flight ware
recorded and suhn.ittw.w yourself andlccal staff.
Lately an interest has intensified in this area. Iunderstand
that some ~wnsideration is being given to the conduct of har-
vest oprations in the area. I would wrsonally caution any
mewho maybe wnsidering this Peninsula as viable timber
source.
An F.R.I. cruise was wnductsd for the Black Bay area in the
1979-80 season. As the acwmpanyirg table illustrates, the
pcductive forest area is largely occupied by the Balsam Fti
wrking group (47%). An awitional 2B%.is wvered by the
Poplar& Birch irking groups. Most of these hardw~&
stands are o-ature andunusable With adense Balsam Fir
- 24 -
understorey. ?WeWy-one psrc@nt of the total productive for-
estareais in the mature age classes. Tbe mature wnifer
horki.q groups wmprise only 0.4% of the total productive for-
est area or 2.1% of the mature-workirqqrqos area. Tk total
vdnne of these Black Spruce star& were estimated to be
approximately 10,000 cords.
'lbe May lst flight confirmed these F.R.I. figures.+.Any large
Spruce ad Pine is very scattered; 'IYE mature hardwood wxk-
hg groups have little Spruce ad Pine volume in them. Balsam
Fir ard Cedar form a large wmponentof the secondgrowth
stands.
AS the unit forester for this portion of tba P.A.M.U., I muld
Mt wnsider any operation primarily~.interested in removing
Spruce and Pine volumes. 'Ibe reasons are twofold:
il 9-e ~1uma.s available muld not warrant a large
operation.
ll) Removal of the existing Pine and immature Spruce
wxlld intensify the Salsam Fir invasicn.
The only full scale operation wrth while to wnsider is a
full tree chiFpingoperation to remove young Salsam Fir from
the highly prcdctive sites. ChiFpins may not be feasible
for ten to mty years due to the size of the second growth
stems hit is the only satisfactory venture tien wnsidering
regenerative capabilities.
Present small scale operations wnducted from Rurkettover
the ice'in tk winter are permissible only on the basis that
they are supporting viable lower-ten opportities to local
entrepreneurs kfio are willirq to extract limited quantities
of sawlcq material.. lhe treatment of stands left after these
typ of operations have araised some wncern. Itishoped to
address some of these problems this fall.
PI sinwary, large scale operations are not a feasible venture
in this areadueto limited ~3luma.s ard present technological
limitations. I hope that you will appreciate the situation
asit stands and consider these facts for sound management
d-xisions .
- 25 -
Some weeks later the Regional Office at Thunder Bay
entered the picture. On June 26 Mr. Auld met with Regional
Director Baxter and his-assistant, Mr. Affleck. As a result,
Mr. Buchanan was advised by letter dated July 2 of the Region's
position in respect of six different areas. The only refer-
ence to Black Bay Peninsula was the following:
Agreement was made to personally fly over the area by helicopter
in order for you to indicate here the areas of merchantable
wed arelocated.
On July 13 the griever accompanied Mr. Buchanan
and the Regional Director on a flight over the Peninsula.
A week later there was a meeting attended by Messrs.
Baxter, Koistinen, Marek, MacAlpine and Regional Fore~ster
J.T. Rudolph. It was Mr. Rudolph who recorded the meeting
(Exhibit 12) in the following words:
Ken Etrhanan and Al Baxter have flown the areaover the pen-
.Y. insula previous to this meeting and Ken has indicated his
in wntinued desire to enter into two specific blocks within the
peninsula for harvest dpration. He estimates approximately
100,000 wrds to be cut in the area. Tha district, on the
other hand, has identified 5,800 acres at 12 cords par acre
quailing 69,600 cords (20% conifer (kite spruce plus white
pine)). 73-e district data is based an combined FRI-OPC
auisirq plus G. Uarek's visuaLexperience.
.~ ..~.
,
:
- 26 -
T&e ptentbbcks on the topmast side of the peninsula have
all pine reservedto the Crown.
Tl-e district is wncernec~that the wmpany will cnlytake the
pine and spruce (2U%) leaving the balsam fir. In addition,
there is a.~ccncern that the Min.&try will endup subsidizing
aroad for Mr.Euchanan. Sichasmallvo&meofhccd~uld
not warrant subsidization.
?he district indicates that a Mr. G&au from thakett operates
500 cords per year on the p3insula~currently. lI3a interest
cd this operator must be considered.
Cwdusion :
ENR will.offer Buchanan 6ro.e. winter access only with no
subsidization to the northern block on the peninsula.
'Ibe existing operator from Wkett.will-'& protected by the
District sawing off a s&l area on the ma giving him
protection for up to 10 years. 'lbe district might also wn-
sider giving this operator the Crown's interest to the pine
M the patented lots tothe wastside of the peninsula (as
part of the 10 year package).
The soutt&nmostblockon the peninsulamentionedbyEuchanan
will be forgotten for the time being. (i.e. in our considerations).
A curious feature of the document quoted above is
that it states as a "Conclusion" that Buchanan would be
offered "winter access only" but it remained non-committal
on the crucial difference between the Buchanan estimate
and the district staff's estimate of, available wood.~
Apparently a decision on "allowable cut" was being post-
poned to another day although an "offer"~ ~would be made to
BFPL. However, the griever has testified that Mr-. Rudolph's
iecord is not accurate in that a "maximum!' cut was actually
discussed at the meeting..
- 27 -
After the flight, the griever made maps of the
sectors Mr. Buchanan had said he would cut. These resulted
in an "estimate" of a maximum 69,600 cords, based on 12
cords per each acre identified by Mr. Buchanan. However,
said the grievor, he and Mr. Marek at that time ,thought
20,000 cords would be a more realistic estimate because there
were "empty places."
The griever had already been shown the Deputy
Minister's memorandum of June 5 to Mr. McCormack. Thus he
was not surprised when Mr. Rudolph asked for an e.xplanation
of the data relied on by the district foresters. The griever
on August10 gave Mri Marek a memorandum, .Exhibit 13, together
with tables of volumes and '*a description of the methods ._
employed to derive these estimates." On August 11 he sent
Mr. Rudolph, Exhibit 14, a fuller explanation which appar-
ently had the concurrence of Messrs. Koistinen and Marek.
Indeed, he has testified, his methods have never been
challenged or criticized by any one., Exhibit 14 reads as
follows:
Attached is sn estimate of volumes~cn the,Black Bay Peniwula. . ..:.. A description of the methods employed to derive these estimates
acccmpanies Tables 1 ard 2.
- 28 -
:- :
Potential sawlcgstems were relatively easy to delineate on the
plots established ~1 the photos. Use of huttall's 1979 to 1981
scale csuimaries provided a reasonable estimate of the average
diaineters in this area. Gnsidering that i-W. NXtall,is presently
operating in the highest concentrations of Pine and Spruce, the
loher concentrations indicated in the data presentedheremust
be reasonably accurate. A summary of the data for Mr. Nittall's
at is included at the end of the MElIiODS description.
This data provides the best indication of volumes available in the
area barriiq an intensive operational cruise. It supports our
previous contention that volumes in this area till not warrant
developsent of the area for full-scale legging. All-wsather road
could not be feasibly constructed at a returnable cost for these.
volumesoftimter. ..~
Ihare are sufficient volume.5 on Mr. kttall's.vivate lands to
supporta maximun of six years operations (5,000 cords at 820
wrds per year). To fulfill a 10 year commitment for the Furkett
cprations an add$tional3,280cordswxldbe required. Gf the
area considered to contaksufficient vclunms,for some harvesting,
only~l4,OOO wrds~uld remain or a two year operation at
10,000 axds per year. Even with maximum volumes considered,
the 10,000 cords px year a.zt oould be supported for a maxhum
of 3 or 4 years...
Removal of this sawlog material tiuld not create sites suitable ~.
for intensive site preparation, regeneration, and tending oper-
ations. lbs Balsam Fir component is too young and small to remove
in economically feasible chipping operations. Cantar Forest
Prcducts has experienced difficulties in larger material.
Permarent road axxstruction should not be considered as a benefit
to intensify silviqiltural treatments for the area.
Ihe facts are that there is not 100,000 cords of m+ure timber _...
to support long-term developrent on the Black Bay Peninsula.
Anydecision to undertake funding assistance to access this
area for logging prrFoses oould not be justified at the unit
level.
The above letter was followed on August 25 by a
clarification, Exhibit 15, which seems to have been sought
by Mr. Rudolph. It is as follows:
- 29 -
Subject: Black Bay Peninsula Volume Estimates
lb clarify the volumes available to Buchanan Bros. m Black
Bay Peninsula.
After deletion of vo1uma.s made available to Mr. N.&tall of Hurkett
to ensure a ten year at on private and crown land, approximately
27,000 ads (t&al merchantable plume) will remain.
lbese volumasdiffer from the estimate presented in our July 20th
meeting. kwever, it was emphasized atthatmaeting that the
figures presented represented a maximumgross totalvolum of
mature wed for tbs entire Black Bay Peninsula. Itwas decided
at this meeting that the southern portion was presently inac-
cessible and inoperable (Record of Meeting, 1981-07-20). Hence
this area has not wnsidered in th'Aqust ll, 1981data.
Volume data will bs forwarded to Mr. Buchanan: If you have any
further ccimaents or questions please do not ksitate to mntact
me.
The griever testified that during the summer his
crews were not cruising the Peninsula, being busy in Hele
township, about 15 miles from Black Bay. They complained to
him that FRI gave inaccurate information about tree ages and
operable stands, that many trees were too small to harvest, ,..~, ..I.
that othershad fallen or disappeared and that some stands
had been wrongly typed. These reports, said the grievor,
confirmed his distrust of FRI data. :=::.
By this time it was felt that an answer was due
to Mr. Buchanan. The grievor was authorized to write a
letter dated August 26, Exhibit 16, enclosing his tables of
- 30 -
volume estimates and his description of the methods used.
He told Mr. Buchanan: "I feel this is the most reliable
estimate available at this time. Only an intensive operat-
ional cruise would prove more reliable."
Unfortunately, forest fires and other commitments
made it impossible for the District staff to cruise the
Peninsula during summer months. The grievor had repeatedly
made it clear that operational cruising was needed before a
licence could issue. Undeterred, Mr. Auld of BFPL wrote Mr.-
Koistinen on September 18, Exhibit 17, as follows:
Thank you for your letterof Aqust 26, 1981, containing
the data for &volumes of merchantable species on Black Bay
Peninsula.
We are encouraged by your initial estimate of wzcd volumes on
the Pentila.
A CMrment must be made cm the following statement under your
?Wzhcd,of Deriving Vol&iss - Section - Average Diameters"
kdlich states: "Any stem 9" dth were ansidered as pllp heed
material". OR past legging experience has shown thereto
be three sawlcgs from the 9" class. Iherefore~, we would not
cMlsider those diameters for pllpmaterial only:
As my letter of A@1 6, 1981 stated, Buchanan Forest Products
Ltd. wishes to re-express its interest in proceeding with the
licencii-q of this area.
If you have any questions, please contact me.
- 31 -
,.: -.
On September 28 Mr. Koistinen sent a cautious
but discouraging reply, Exhibit 18 (apparently drafted
by the griever) as follows:
,Yox letter cf September 18, 1981 indicates that you are
tilling to operate on the Black Pay Peninsula, being aware of
the volumes presently available. .Portions of this area can
belicensed to others after the demandsofotherlocal
operations are considered. However, it should bs reiterated
that the volumes pesent here do not justify subsidization for
all weather roads anstruction into this area. *rations muld
likely be restricted to the winter season due to this fact.
Diameter restrictions or some other form of cut control may be
implemented to ensure some form of regeneration.
Licensing can Gs considered only on an annual basis to ensure
that operations are carried out satisfactorily. Long term
large volume cmnitments cannotbemade for this areadue to
the restricted area and volumes. Exceptiona for non-treatable
areas ad reservations cn the lake shore would reduce the lard
base available for forestry operations.
Acknowledging the above letter, Mr. Auld as Woods
Manager of BFPL, attempted to define the outstanding issues.
~,_. .,.
As of- October 6, hedefined them as follows in Exhibit 19:
(1) BFPL had asked for a large "allowable cut"
licence on Black Bay Peninsula'and other areas "to supply
Sapawe with a sustained log supply," but M.W,R. had not yet
outlined any "specifics." _.
- 32 -
; M.N.R. (2) BFPL wanted a long-term licence
favoured one year.~
.I’
(3) BFPL thought 80,000 cords were available;
M.N.R.'s estimate was "30,000 or 17,000 cords."
(4) BFPL proposed that other licensees "continue .,
operating at their present level;" M.N.R. had said "others
must, be considered."
(5) M.N.R. had mentioned many "restrictions;*'
BFPL wished "to see specifics."
(6) M;N.R. thought "diameter restrictions" might
be implemented for regeneration purposes, but BFPL felt
artificial regeneration would give better results.
(7) As to ah "all weather road".M.N.R. did not
want one: BFPL did not need it for logging but felt "it
would aid better forest management..... Cost could be a
problem."
(8) M.N.R. did not think a long term volume
commitment could be made; BFPL wished "sustained volume
commitment for one to two decades."
(9) M.N.R. wished "limited management for timber;"
BFPL believed "area can support long term allowable cut if
- 33 -
managed intensively for timber production." .~
Mr. Auld suggested an early meeting "to address
these positions." However, his analys.is did little to recognize
that the Ministry's District Staff.simply did not think there
das enough~wood on the peninsula to justify cutting of the
magnitude and duration proposed by BFPL.
On October 14. the grievor gave Mr. Koistinen a
lengthy commentary, Exhibit 20, one the Auld analysis. It
need not be quoted in full but the following are sign~ificant
.i> passages:
BFPL reguestedalong term license to secure trade-off volumes for
their Sapawe mill. Cn March Ll, 1981, the firm indicated that
Sapahe requires 25,000 ads conifer annually to operate (Minutes:
Atikokan Forest Produqts itd - M.N.R. meeting, lhunder Bay). Cn
March 31, 1981, the firm indicated that 48,000 cords Annual
Allowable Cut (A.A.C.) conifer mid be required in addition to
an A.A.C. of 50,000 cords pesently available on licenses in the
Atikokan area (Minutes: BFPL - M.N.R. meeting, Nipigon). Irre-
gardless of the actual quantity required from our district, to
meet a ccmnitmerit of 25,000 cords a&far per year, 68,000 acres
of land kould.be required over 80 years (assuming volumes of 30
ards per acre) to fulfull any resemblance of intensive forest
management. Hcwever, to initially achieve this 25,000 cords
conifer ccmmitment,,tk available growing stodc must be consumed.
Assuming that an averqe of 15 cords per acre would be available
in all site classes, 133,333 acres are required now to meet such
demands. Cur production forest area in the Nipi= portion of
the P.A.M.U. is approximately 177,700 acres including all working
groups and & site classes. Intensive management is practical
cnLy on the better sites. Site Classes 2 and better amprise
34 -
141,600 acres in all karkiq groups. It is wssible to fulfill
BFPL's targets, based cn the p-esent lard and forest base in our
district. NotonlywXld our accelerated allcwable cut be exceeded
(570 ha./yr; 1,408 ac/yr) for the coniferous hurking groups, ht
all land muld be ostittedto this firm. It is hoped that the
M.N.R. &ld have the wisdom to avoid such a wmnitment since this
is the lasturrontrolled area availabletolccal entrepreneurs in
this district. 'lb pit all the A.A.C. for any species in one firm's
control (as requested by BFPLcn April6.1981) does Il)tensure a
supply for lccal saunill operators. ccmnitments of this type have
led to apathy in the past where firm's have beanie secure in their
Comnitments resulting inpoor marketing ard utilization (MacMillan
Bloedel and poplar). In addition, the interests of lccal entre-
preneurs should be ansidered irregardless of ths "insignificance"
of their requirements in BFPL's estimation.....
BFPL's requests for Hlack Ray Peninsula access have been rejected
continuously because of a lack of merchantable hncd volums in this
area and otter considerations. TtLs firm contends that 80,000
merchantable cords are available. Based cn our best'data and
numr0us.aeria.l reaxmaisances, 30,000 cords remains our maximum.
If BFPL wishes to continue disputing these figures, an operational
cruise couldbe urdertakeniftheyare williq to cover the costs
of such a survey to confirm their contentions.....
Largevoluae mpmnitmants cannotbeti for one or TV decades
on the premise of sustained yield if the term of rotation sod avail-
able growing stock are not wnsidered. O.rtting 80 years of allowable
cut in 2 decades is not sustained yield.....
_;< : On October 27 the district staff met BFPL officials
in their office at Thunder Bay. According to the testimony ~-
of Mr.. Marek (the grievor,!s supervisor) it was a difficult
encounter. He testified "Buchanan and Auld were very
aggressive," and continued: "I said 'you are looking for
collateral' and Auld said he had to have it for the bank.!'
In Mr. Marek's -memorandum, Exhibit 21, recording the meeting,
he said.:
'lbe Ministry agreed with -hanan that approximately 27,000 cunits
of soft&s is available for them in the black Bay Peninsula
which is part of the C.M.U. VLs volume canbe licenced to Buchanan
Forest Frcducts in a term of a 2 year licence. Presently, Euchanan
has a 1 year licmce issued for the McIntyre bay with atotal cut
of 29,000 cords of softwads ard hardwzcds. Besides this Euchanan
has an option tc operate in hele Toenshipwhich is also past of the
C.M.U. There the annual cut is approximately 2,000 cords. This
has not been exercised in the last2 years. This licence expires
in March 1982. Becauserx,ccmnitmnt~ld~eetoWlchanan's
request on a long term licence, Toronto was contacted on October
28/81 by G-T. Marek and was told the following:
No long term commitment on a sustain yield basis could be made.
,lhe recently announced 2 year licencelimits should a&y tc Bach-
anan. Volume pgreements could be negotiated with the company.
Buchanan Forest Fnducts issue was discussed in Taronto at-d no long
term ocmfrdtments were arranged specifically for the sawmill operators.
Buchanan has a choice to'apply for a 2 year licence for 27,000
cenits in black bay. This canbe acwtedby District after
consideration of specific multiple uses. Buchanan can utilize the
wesentlicence in Kctityre @ay and &ale %p, hit no long term
production should be considered until:
a) Ibe allowable cut Volumes he Verified.
b) Consideration be given to the lccal operators.
There is no doubt that the telephone call to Toronto
gave Mr. Marek and the griever the impression that the Crown .-_p-
Timber Sales office in Toronto thought "no long term commit-
ment" could be made, and .that the Ministry needed better data.
Accordingly, on October 28, the griever gave Mr. Marek a
: .! \ .._...!
- 36 -
memorandum setting out his "proposed schedule for verification
of the F.R.I. and available wood in the P.A.M.U.": It,,specified
a total of 10 weeks required for cruising and analysis of both
old and new data, concluding: "This schedule assumes no
interruption of the timetable by other priorities", Exhibit 23.
At thistime, however, the grievor was also involved
in the preparation of a District Land Use Plan, for which
there was a November 23~ deadline. On November 20 he received
a telephone call from Regional Forester Rudolph, asking for
"specifics" relating to "Buchanan and Black. Bay," and whether
stands had been designated. He was at a loss to reply because
no "Operational Plan" for the area existed. Lacking sufficient
data he had never been ordered to prepare an Operational Plan,
which would be needed in advance of an Annual Plan. In a
second call, Mr.,Rudolph asked whether "allocations exceeded
the allowable cut." The griever said he did not kno,w because .~
the F.R.I. was unreliable. Mr. Rudolph then requested a
meeting on November 23 and evidence to support the claim that
the F.R.I. was defective.
The meeting on November 23 was attended by Messrs..
Rudolph, McHale and Parker of the Regional Office, and also
- 37 -
several from both the Thunder Bay land Nipigon Districts
including Messrs.
R. Klein and P.McAlister. Mr. Marek was
also present at the outset but left when he became ill.
,.
Of those who attended, only the grievor and Mr.
Marek have testified. Mr.~ Marek's testimony included the
-following statements as to the~nature of the discussion:
:I was astounded by Rudolph and McHale. They said 'How
come you are not accomodating Buchanan?' I said 'we are'.
They said ,'you have to give him the allowable cut.' I said
'how can I if I don't have it.' I had contacted Jim Keddie
in Marcus' office, who said the policy was not' to give long-
term licences to any sawmill operatoCrrGC;, Rudolph blew up ---
'what the hell have you been doing for the last 35 years?'
I asked Don as Unit Forester to take over. I was there
only a few minutes --- stomach upset --- I had to see a
doctor."
The griever's version of the meeting is that Messrs.
.Rudolph and McHale demanded a lo-year program based on the
F.R.I. He said "that concerned me due to the status of the
F.R.I." The response was that it con;tituted. no problem as
- 38 -
long as there 'were qualifications. He was told there had
been "similar exercises" in other areas. To "qualify"
meant specifying in writing concern about the data. The
grievor further testified; "Rudolph indicated there were
pressu,res, from head office --- that Buchanan had connections.4S
According to the griever., the lo-year program was
to be for the whole unit, which would included Hele Township
as well as the Peninsula. He said: "There were six or
seven operators in the unit and as many more on adjacent
lands had to be considered. All had annual licences . . . . .
I didn't know if I had sufficient timber to supply the other
operators . '?, -.~'.
The griever further testified: "Rudolph requested .~ ~.
me to issue a licence for the Black Bay Peninsula, specifying
volume and' locations. I and superiors were to sign and then
it would go to Toronto for an Order-in-Council licence." Her
did not see how a lo-year Operational Plan could be prepared
without cruising, but his cruising program was "ignored."
As he understood the Ministry's policy under the Crown Timber
Act and the Manual, issuing a licence without prior cruising
was "not~acceptable." He suggested that his superiors would
:
*-.
.:. I.:_!
_ I
- 39 -
have to accept responsibility for the program because, as a
professional forester, he could not. According to him,that
statement was ignored.
.~.
s, On the same day, November 23, Mr. L.M. Affleck
(who had become Acting Regional Director) despatched a mem-
orandum, ,Exhibit 25, to the Managers of the Thunder Bay .and
Nipigon Districts (received by the Nipigon Office on November
26) as follows:
Re:
Buchanan and Port Arthur Management Ckrit
RLis is a follow-up to a telephone conversation today (McHale
-Koistinen ard I-Well) herein the District Managers are
requested toe-e that Messrs. &Alpine and McAllister
complete the necessary processes of the operating plan
(allocation and Licencing program) as discussed at a maeting
this morning in Thunder Bay.
Details and assistance are readily available from the Regional
Office.
A meeting is s&~&led for 2:305‘p.m., -day, &cember 7,, 1981,
Board Rmm 2A&B, atdich time the two districts will make a
presentation in Thunder Bay.
Yw cooperation is appreciated.
The griever's indignation was aroused by the meeting
on the morning of November 23. He telephoned Mr. Jack Stokes,
M.P.P., who came to his home that evening. The grievor gave
Mr. Stokes copies of Mr. Foster's,letters of April 22 and
- 40 -
June 5. He also explained the background of the dispute
which had come to a head that morning. Mr. Stokes merely
said he would write the Minister about it. However, the
grievor concedes he was not surprised when reports of the
dispute appeared in the press. He believed there had been
wrong-doing and that he had a duty to expose i,t. .-..
The strong feelings of the griever at the time were
expressed in a letter to Mr.
Rudolph he drafted on November
24, Exhibit 26, which was never sent because Messrs. Marek
and Koistinen thought it "too emotional." It was as follows:
Subject: Volume comnitments to Wrhanan Forest Products LM.
for P.A.M.U., Nipigon Norking Circle
Sir, I till amply with y-request for'data" to enable you to
resolve this issue between y-self, Head Office in Toronto, and
&ch- Farest Products Ltd. However, I Q so under protest.
You wish an estimate of volumes andarea based upon FiR.1. data
which ha.5 been found to be inconsistent since my arrival in this
unit.
Your reason was stated to be "ti.nie constraints,relative to
the initiationof Mr. Bchanan'sdemards. An answer is required
now. 11
Yol stated m cm meeting of Mvember 23, l981that Mr. -hanan
is totally separate of az Ministry and hance has no reason to bo
patient with our internal planning problems. I submit that as a
Public servant (113tGOv ernment servant), my firstancern is the
management of cur forests. Mr. Bxhanan chose to purchase Sapawe
mill, not the public. To hasten volume wmnitments based on
inaccurate data is poor business. lb make volume wtitmsnts to
: I
‘L .i
~1,
- 41 -
B.F.P.L. similar in nature to ones which were made to Hearst
with cautionary clauses will surely lead to the same situation
asi.nHserst - vocd shortages.
I willsubmitthe reviseddatato you, b2t this arrangement
smcksof Politics. Iha acceptance of responsibility for any
wwrence of zhorteges in the future - may it rest on yours,
vf Mr..Foster's and Mr. Pope's shoulders. Gzd klp the Forests
of Chtario d-en they are entrusted to such administrative
tieauaats as y-self.
In cross-examination the grievor said he did not
think there were "other channels" through which he could
protest. He believed (on his interpretation of the Deputy
Minister's letters) that Mr. Foster was involved in the
scheme to grant Buchanan a licence contrary to Ministry
policy, and his superiors in the'Regiona1 Office had~exerted
great pressure on him. He could not explain, however, why
he had not sent his protest to Mr. George McCormack, the
Assistant Deputy Minister for Northern Ontario, or to the
Minister of Natural Resources.
-It is worth noting there is no evidence that any
report of the dispute appeared in the press before December
21, 1981. However, Mr. Marek has testified that operators
(with limited annual cutting rights) had become concerned
about the BFPL proposals and paid many visits to his office.
- 42 -
Their.~concerns were reported in the press, and also those
of certain fishermen, Exhibit 3M6.
1 / On November 26 Mr. Affleck despatched another
memorandum to the two District Managers "Re: Port Arthur
Management Unit Licencing Program." It made no reference
to BFPL or the Black Bay Peninsula, but specified require-
ments for a meeting to be held'on December 7. It asked for:
(1) A table or tables summarizing "the allocated
harvest cut to the various'operators for the five year period,
April, 1982 .to March 31, 1967;...."
(2) "An allocation map for the unit..... showing
the location of the allocation by operator. This map should
contain the twenty year allocation for the unit of the entire
allowable cut and identify those stands which for whatever
reason will not be included in a licencing program."
(3) "The written text portion of your operating
plan entitled 'Cutting Operations' which will explain and
justify the rationale used to arrive at the data and map
information."
The directive is significant for its omissions.
No licencee or proposed licencee was identified. There was
reference, however, to a "twenty-year allocation" and to a
non-existent "Operating Plan," which apparently had to be
produced by the Districts in less than 10 days.
It should be explained that the Port Arthur Manage-
~ment Unit straddles the Ministry's Thunder Bay and Nipigon
Districts, so that some correspondence went to both District
Managers.
Mr. Marek suggested that the griever work on his
data and a "qualified" plan --- indicating he could not pro-
fessionallyendorse it. He prepared material for the
December 7 meeting outlining his concerns-and refusing to
accept responsibility for the use of F.R.I. data which he
considered.defective. That document, however, is not in
evidence. According to the grievor he expressed his strong
objections at the December 7 meeting, and said he was being
asked to "contravene" the Manual. In cross-examination,
however, he said his superiors had never specified the
figures they wished him to produce: that responsibility was
his. "Don was under terrific pressure," Mr. Marek said.
i ;.. :.-
- 44 -
Mr. Marek testified-that he advised the griever of
three~options: he could comply with orders, he could' resign
and register his protest, or he could make a report qualified
by h,$.s own reservations or disagreement. The grievor chose
the last alternative. Mr. Koistinen and Mr. Marek made clear
that they did not think the dispute should be in the public
arena : it should be resolved internally.
Early in January (as mentioned earlier in this
decision) the grievor despatched a complaint to the Ontario
Professional Foresters Association, charging four of.his
superiors with unethical conduct under the' By-laws of the
Association and.its Code of Ethics.
On January 4 Mr. Affleck addressed a somewhat
ambiguous memorandum to Mr. Koistinen, Exhibit 3M10, as
follows:
SUBJECT: Rx-t--Arthur M.U. Supply to Buchanan Bras. Ltd.
The Regional Forester, lhm IMolph and your L.Wt Forester,
Mr. D. MacAlpine with P. McAlister of Thunder Bay District
have recently been attempting to p2t tcqether a Ministry
psition on the potential available 4 from the Port Arthur
Management Lhitrelative to future wzzdsupply for Mr. -hanan's
sapawe mill. lb3 matter has taken lcqer to resolve than
originally anticipated tith a resulting reply to Mr. Buchanan.
- 45 -
Recently, Mr. Ma&lupine was advised by D. Parker, Regional
Forestry S~cielist that the method for deriving the volume
estimate an the allowable q&z acres would have to be revised.
IQ not feel the Ministry caYafford to weit any loiqer
k&ore indicating to the mmpeny what we estimate to be
available on tl-e P.A.M.U. for the new management plan period
7t mnnnendng April~l, 1982. W analysis of the information
- pzduce3bykoth districts to date, leads me to believe that
the followirq statements could be made relative tb Razhenan's
wxd supply here.
1. Althoqh the mniferworking group acreage ellccation for
the company will increase mmpered to the historic cut level,
this Ministry estimates that based cm existing inventory infor-
mation, total mnifer vulums aveilable will be less in the new
operating period. This of murse will have to be confirmed by
future planned operational cruisirq.
2. Hardwood wrking group'ecreqe allocation will likely
increase for the mmpany over the historic cut level. This
Ministry estimates a substantial increase in the volume of
hardwd available for tarvesting which should mare then
mm~nsate.for the estimated conifer volume shortfall. 'R-e
volume inform&ion currently available must yet be confirmed bye
planned operational a-uisirg.
3. Zhere is an age class structure problem with the balsam fir
wrkinggroupin W.C. 2 in thatthe calculated allowable at
level cannot bemet entirely by mature age classes. lTere still
remains an acreage of balsem fir working grow to allocate for
altthg . The district should be directing its attention inn&-
iately to o~ationelly auisirq this unallocated acreage to
determine its operability. Eh. Brrhenen wuldbe advised c& this
fact ti that he will receive first mnsideration for any surplus
in conifer that should be identified as a result of this forest.
inventory mark.
If ycu are in agr cement with oti urderstanding here in this
situation, please direct a written reqonse to Mr. Wrhanen
wncernirq this Ministry's position relative to estimated
supply from Working Circle 2, Part Arthur Management mt.
I+nclcee 2 sumnery reference sheet for Buchanan's estimated annual
supply over the next menage-t plan period based on information
mmpiled by Thtier Bay at-d tipigon Districts.
Please supply this office with a mpy of your mrrespzndence. .
,:
__
- 46 -
The result was a letter to BFPL, .Exhibit 3Mll.
It was drafted by the grievor but signed by District
Manager.Koistinen and a copy ,went to Mr. Affleck. It
seems to embody the "qualifications" the grievor thought
-necessary es of its date,.which was January 15, 1982.
According to Mr. Markus, a cunit equals 100 cubic feet.
Compilations have been ccmpleted for the Annual Allowable Cut
(A.A.c.) on the Nipigon portion of the Port Arthur Management.
Lhit (P.A.M.u.). ~Besed on these cala&tions, allocations
lxesently mmnited to -hanan Forest products Ltd. (B.F.P.L.)
hsve increased dramatically over the historic annual harvest
mnducted by B.F.P.L. (see attached table).
These increases do not absorb the total excess allowable cut'
a.5 defined by our pxsent data. In fact, theoretical excesses of
epproximetely 200 bect&res and 3,000 Net Merchantable cunits
annually exist in the data for the Cmifer Working &ups.
Similar excess figures (180 he. ;nd 5,800 N.M. Cunits annually)
exist in ti-e Harti Working QDup date. However, extreme
caution must be led tien considering these excess figures for
the followirg reasons:
i) the base date is very poor.
ii) the Balsam Fir workitq Group mmprises most of the excess
mnifer figures. A large portion of this Working Croup is
imahre end is included in the present A.A.C. Cur Regional
office is p-esentlymnsidering this fact and will make
mcxmerdations for retaining or renkovirq this immature
mmponent. If it is removed, the excess~A.A.C. in the
mnifers will be virtually removed.
iii) Cperational cruisirg must be mnducted to determine the
validity of this data and the actual volumes available.
C$erable stsnds must be verified.
Therefore, these figures must be regarded es a very rough estimate
of the potential excess volumes tiich will be committed to your
firm.
We ask that you accept your present ellocations (3,745 mnits;
- 47 -
254 ha. anually) as your level of operation for now until
these excesses can be confirmed. Should these figures prove
entirely incorrect, .the ~ssibility still remains that all
qerators will have their present allocations reduced in
this portion of the P.A.M.U.
Please feel free to contact our office if you require further
discussions or clarification of any matter.
Mr. MacAlpine was summoned in February to attend the
hearing presided over by Mr. Hamilton. In a lengthy reply,
Exhibit 3M9, dated February 5, which need not be quoted here,
he was unrepentant. He asserted that he had acted in good
faith throughout and according to the dictates of his con-
science; that M.N.R. was.committed to public participation
and "sustained yield:" that the Deputy Minister's letters had
not.~been marked "confidential:" that,he had already freely
admitted "passing" the documents to others. He cited the
Association's Code of Ethics requiring a forester to "without
fear or favour expose before proper tribunals unprofessional
or dishonest conduct by any other members of the profession."
The grievor made the same points when he appeared
at the Hamilton enquiry, and again when he appeared as a
witness before this Board.
- 4a~-
The matter was not raised in the Legislative
Assembly until March 30, 1982, after Mr. Stokes had been
informed of the dismissal. Questions were also put to Mr.
Pope, the Minister, on May 10, June 10, 16, 22, 23 and 30
by Mr. Stokes, Mr. Foulds and Mr. Laughren, Exhibit 7. The
questions and answers need not be explored, but it was
alleged --- and not denied --- that since his dismissal the
grievor had been given 'a tree-planting contract by the Ministry,
as the result of tendering the lowest bid. It was also said
without contradiction that the M.N.R.~was undertaking (in
June, 1982) inventory surveys of the. kind recommended.by the
grievor in earlier months.
The third witness called by Mr. Ryder was Mr. Glen
Swant, who has succeeded Mr. Marek as Nipigon Forest'Manage-
ment Supervisor, Mr. Marek having been given another assign-
ment. Mr. Want said it had taken him as Unit Manager about
one year to prepare a plan for the Red Lake Management Unit.
He had found the F.R.I. to be wrong by about 20 per cent.
He had never known an annual allowable cut to be decided
without an operational cruise. In the Nipigon case, he
said "I would have asked for sufficient time to collect the
required information."
- 49 -
Mr .~ Swant said he had been told not to show any-
thing marked "confidential" to any one outside the Ministry.
He would have regarded Exhibit 3M14 as "delicate" because "all
dealings with Buchanan have political overtones.” In contrast
"even the big operators usually start by dealing with the
unit forester."
The .a.rgumentsof counsel in this case were exhaustive
and related mainly to the applicable law.
Mr. Riggs submitted that there had been clear
violations of the Oath of Office and Secrecy. For such a
serious offence dismissal was the proper course. The grievor
complained of "pressure", although at no time-asked to produce
a particular figure. No impropriety had been suggested to
him. The real problem was that the grievor did not think his
seniors ' policy was sound. If so, his remedy was to make a
protest through "proper channels."'
.A>.
tir . Riggs pointed to paragraph 3(b) in the Foresters'
Code of Ethics: "present clearly to his employers the conse-
quences to be expected from any significant deviations in the
- 50 -
work he has proposed, should his professional judgment be over-
ruled by non-technical authority." The grievor was also bound
by 3(d) to "hold as confidential, information obtained by him
as to the business affairs, technical~methods or processes
of an Employer." Mr. Riggs argued further that breach of the
oath is also a breach of the fidelity.normally owed by an
employee to his employer.
Mr. Riggs cited the following cases in support of
his argument:
Green (1895) 2 Q.B. 1 at pp. 315 and 317 (C.A.)
Bents Brewery (1945) 2 All E.R. 570 at p. 576.
Crane 1950 O.R. 62.
R. v.Fuller 1968 2 O.R. 564.
The following arbitration cases were mentioned:
DeHavilland Aircraft (1972) 24 L.A.C. 9 (Johnston)
at p. 14.
Hamilton-Wentworth (1978) 18 L.A.C. (2d) 46 (Kennedy).
Stewart (1975) P.S.S.R.B., 166-2-2000 (Jolliffe)
M3959 at pp 3990-4000.
Simunovic G.S.B. 276/76 & 46/77 (Swan) at p. 19.
- 51 -
.Fraser (1982) P.S.S.R.B., 166-2-12721-23 (Kates )-.
Crowchild, P.S.S.R.B., 162-2-8119 at p. 8 (Abbott).
Goyette, P.S.S.R.B., 166-2-2914.
Vachon, P.S.S.R.B., 166-2-3106.
Chedore, P.S.S.R.B., 166-2-9320.
Yaillancourt, P.S.S.R.B., 166-2-710-716
atp. 2882 (Meyer).
A.G. of B.C. and Lehnert et al (1981) 3 L.A.C. (3d)
140 (J.M. Weiler).
/ Many of the causes above-cited involved public servant~s
and several are relevant but most are clearly distinguishable.
With reference to the penalty, Mr. Riggs made the
following points:
1.
2.
3.
4.
5.
6.
The grievor was a short-service employee.
The offence wa.s flagrant. not merely technical.
No attempt had been made by the grievor to deal
with senior civil servants.
There was no substance in his charges.
He had indicated he would "do it again."
The offence of giving inFormation to Mr. Stokes .
was compounded by giving even more to O.P.F.A.
- 52 -
In his argument, Mr. Ryder reviewed the evidence
which he said showed clearly that the Ministry's Manual was
being deliberately subverted by Regional officials. All
that the grievor had.done was, done in good faiths and not for
political reasons. He had not been asked for mere estimates:
he was pressured to “come up" with figures derived from inad-
equate and misleading F.R.I. data with calculations to be used
in granting a particular licence. Both he and his supervisor
thought operational cruising necessary but their schedules
were interrupted by other demands'and they lacked the resources
to complete cruising.
The "allowable cut" Mr. Ryder said, was not merely
a mathematical calculation based on F.R.I. but called for a
considered professional opinion, which was fundamental to
the whole system because the Government relied on it in granting
an ,Order-in;Council licence. A "qualified" opinion was
futile because it would not go with. the licence.
The grievor had attempted to raise the issue, but
Mr. Koistinen would not allow him to forward his protest.
Mr. Ryder argued that the Ministry and its Regional officials
had no legitimate interest in protecting themselves from the
- 53 -
exposure of.illicit practices. He said this was not a case
like Fraser, defying an established policy; the grievor was
defending the policy laid down by the Act and. the Manual.
Mr. Ryder said it is obvious not all documents must
be kept secret. Clearly, the line should be drawn somewhere.
He relied heavily on a' statement to the Legislative Assembly
by Mr. Pope (when a~ Minister without portfolio) in October,
1980. ~The statement, Exhibit 4, related to a report on
"freedom of information" and drew attention to guidelines being
issued, which he said '*instruct public servants that the basic
communications position of the Government of Ontario is to
be 'open' as opposed to 'closed.'0' Mr. Ryder emphasized the
recognition in the Premier's letter of October 3, 1980, of
"Members of the Legislative Assembly and representatives of
the news media." ~Those guidelines, Mr. Ryder said, had become
part oft the "internal law" and were to be respected,
Mr. Ryder drew attention to the Brown & Beatty text
at page 378 and Professor Palmer at page 219 of his book. He
referred also to Hogg on the Canadian Constitution at page 421
and Mr. P. Bayer's text at page.26, which he said recognize
the special position of an elected member , regardless of party
affiliation. . ,._
As for the.complaint to the O.P.F.A. Mr. Ryder argued
':::;
~.g it was the only way to protec\t the~profession, from abuse.
,+;3
~.-~I Whatever the result, a professional man should not be punished ,- -2, '...,'~ :: .:*;::i ;;;;>y 4 for bringing questionable conduct to the attention of.his
i,:: :2::
governing body. It was in the public -interest to do so.
.,.;, :: -,::,
.~ ,^. ;I+ ;@ i'-T$ _ t%y+ Cited also was the famous "whistle-blowing" case
;.<C",j .;.r<g ",:~;:-;,j decided by the United States Supreme Court in 1968, Pickering
,) x / v. Board of Education, 391 U.S. 563.
;.~ "i
In respect of the penalty, Mr. Ryder said that,
according to his supervisor, Mr. MacAlpine was a very good
forester.. Both Mr. Marek and Mr.
Swant shared his professional
concerns about the use of data. The problem which arose in
1981 was not continuing and was not likely to recur. The
employer here had made no serious attempt to clarify the
meaning of the Oath.
Finally, Mr. Ryder pointed to the wording of Section
16 in tne"-Public Service Act: "A contravention of Section
11, 12, 13, 14 or 15 shall be deemed to be sufficient cause
for dismissal." Section 10 (prescribing the oath) was conspic-
.pi;
uous by its absence from Section 16. :;.
.:. ‘1 .
,:‘: .::,::’
- 55 -
In reply Mr. Riggs referred to the transcript of
the hearing held by Mr. Hamilton, Exhibit 2. It had been
made clear that the grievor was charged with breach of the
Oath under Section 10 of the Public Service Act. The grievor
himself confirmed what he had done.
_ Perhaps 'it should be explained that an employee who
has been dismissed for cause is entitled to show why he be-
haved as he did and why he does not believe it to be miscon- .
duct. This is particularly important when first-hand testimony
as to the circumstances is not offered by the employer. A
curious feature of this case is. that the testimony of Messrs..
MacAlpine, Marek and Swant stands completely uncontradicted.
Lacking any explanation under oath by the Regional staff, it
has been necessary to quote.the documentary evidence at con-
siderable length on the earlier pages of this decision.
In the light.of the background testimony given by
Messrs. Markus and Want, in the light of the direct evidence
given by Messrs. Marek and MacAlpine, and even more in the
light of the written communications on record, certain con-
clusions may now be stated.
,. 1
-' 56 -
(1) The Deputy Minister's Letters
In his letter of April 22, the Deputy Minister gave
convincing reasons for rejecting the Domtar proposal. In his
letter of June 5 to Mr. McCormack, the Deputy Minister also
gave reasons for according priority to the needs of the Sapawe
sawmill, and he made no suggestion that in doinq so.the law
or the Manual should be disregarded. There was no justification
for.the inference that the second letter amounted to a "turn-
around" or that officials in the field were being encouraged
to break the law for the benefit of'BE'PL. The Deputy Minis,ter
had a legitimate interest in alleviating the Sapawe shortage
.of wood. Accordingly, he asked that "top priority be given -;
.to the Buchanan request for "any unallocated coniferous allow-
able cut in the Crown Management units in Thunder Bay and
Nipigon". He did not, however, suggest any improper or illegal ~-,.,..'
act in attempting to meet the need. In our view, the grievor's
accusation. against the Deputy Minister was unfounded.
(2) The Buchanan Role
The evidence is clear that the BFPL President and
his aides carried on an aggressive campaign at the District
and Regional levels to gain access to the Black Bay area,
although they already had cutting rights in Hele Township,
which they had not used for two years, as Mr. Marek pointed
out in his memorandum of October 29, Exhibit 21. On the
- 57 -
strength of one or more flights over the Peninsula they in-
sisted there was wood available for a lo-year cut.. Messrs.
Marek and MacAlpine, who had done some preliminary cruising,
on the ground as well as by air, estimated much less wood and
had reasons for believing that the F.R.I. was highly inaccurate
and misleading. They consistently discouraged the BFPL pro-
posals, but the company persisted in its campaign for a long-
term licence, which Mr.
Auld said could be used "at the bank."
(3; The Regional Staff
It may be that the Regional officers misread or mis-
understood the meaning of the Deputy Minister's letter to Mr.
McCormack, or that they were unduly impressed by the BFPL com-
plaints. They put increasing pressure on Messrs. Koistinen,
Marek and MacAlpine to produce calculations more favourable
to the BFPL'cause. This is apparent from what they wrote and
also from uncontradicted testimony about what was said at
meetings. The conclusion is inescapable that they were de-
manding reports and opinions contrary to the judgment of pro-
fessional foresters in the field and contrary to standard
practice under the Manual. Mr. Marek became ill and went
away. The grievor continued to resist pressure, but eventually.
- 58 -
l
wrote a report, full of reservations and "qualifications,"
which District Manager Koistinen signed on January 15. Thus
the Regional staff may have yielded to "pressure," but the
District staff had not yielded. Certainly the letter of
January 15 .could not be used to justify the grant of the
long-term licence being,sought by BFPL. By that time of
course the matter had become the subject of public controversy.
Unfortunately, more must be said of the part played
in this dispute by the Regional Staff.. The evidence is over-
whelming (and uncontradicted) that the Regional.Director, his
assistant, and the.Regional Forester put strong pressure on
Mr.. Matek and Mr. MacAlpine to come up with reports or recom-
mendations which would justify the unjustifiable, i.e. to make.
possible the granting of a long-term licence contrary to their
professional judgment and contrary to the requirements of :
the Management Manual. Apart from the 'testimony, Regional
communications to the District Staff (including Manager
.
Koistinen)~ were peremptory in tone, and their language left
no doubt of what was demanded.
For example, in his memorandum of November 26
I
- 59 -
Exhibit 27, specifying what would be required at a meeting
on December 7 (less than two weeks later) the Regional
Director made the following demand:
An allocation map for the unit at a scale of 1 inch = 1 mile
showing the location of the allccation by operator. ibis
map should contain the &enty'year allocaticn for the unit
of the entire allowable cut and identify those stands tiich
for whatever reason will not bs included in a licencing ,,
proqram i
It should be noted that the above demand refers to a
twenty year allocation. Although no names were mentioned, it
is an obvious reference to thee ambitious plans of BFPL. The
demand was unreasonable and improper,.for the following
reasons :
(1) The unit included Black Bay Peninsula, .as to
which the District Staff had been advised by the Toronto
office that nothing more than a two-yea; licence would be
possible.
(2) The District Staff had repeatedlyreported that
their preliminary estimates would not support "sustained yield"
cutting for more than a very short period, and even those ..,
estimates were subject to revision by normal cruising for two
or three months.
- 60 -
3) No operational plan as yet existed.
4) The unit included certain small operators in
the northern sector of the Peninsula who held one-year licences
for small cuts, no twenty-years program being contemplated at
that time.
(5) Even the BFPL licence in another part of the
unit, Hele Township (which had not been used) was limited to
two years, expiring in 1982.
.,.
(6) Worst of all, the demand was wholly inconsistent
with the requirements of the Forest Management Manual. On pages
7 to 41, and again in a table on page 56 it is made perfectly
clear that the "allowable cut" is not to be arrived at by
guesswork or on impulse. There must be an inventory, a
management 'plan and an operational plan in the light of which
.\
allowable cut and an annual allowable cut 'is calculated, all
subject to the objective of achieving "sustained yield." Very
little of these requirements had yet been met in relation to
the Black Bay Peninsula, for which, as part of the unit, the
Regional Director was demanding (within two weeks) a "twenty
year al ,ocation. 3'
::;::, .~a ,,:y:
- 61 -
.:
It has been argued that the Regional Director was
asking only for "estimates." The language of his memorandum
flatly contradicts that theory. In his concluding paragraph
he demanded "the written text portion of your operating plan
entitled 'Cutting Operations' which will explain and justify
the rationale used to arrive at the data and map information
presented."
This Board does not presume to determine what the
volume of available timber on the Peninsula might be, and
we doubt that any one was in a position to do so in November
or December of 1981. We are obliged to conclude, however,
that the Regional Staff's demands at the time were not con-
sistent with the provisions of The Crown Timber Act and the
Management Manual and that those demands were unreasonable and
unfair to the District Staff.
(4) The Oath of Office and Secrecy
In effect the employer's .counsel argues that the
Oath means exactly what it says;and he rests his case on the
griever's candid statements that he gave two of the Deputy
Minister's letters and other information without authorization
(a) to Mr. Stokes,. M:P.P., and (b) to thee-O.P.F.A.
./
;/ :~..~:~:.‘i / .j,,i,. :,::::; /
‘_
- 62 -
The language~,of the Oath is not free from ambiguity
For example, it includes the words "except as I may be legally
required." Some would~doubtless argue that this applies only
to a public servant under subpoena to testify before a court
or tribunal. From the griever's point of view he had a legal
,duty to expose what her believed to be improper, unethical or
even illegal conduct, having regard to the Crown Timber Act
and the Forest Management Manual.
Moreover,
the Canadian tradition that internal .'
government business should not be ventilated publicly (except
by politicians) seems to have been jettisoned in Mr. Pope's,.,~
statement to the House and the Premier's letter of October‘ 3,
i-1-980. The new policy, it was said, is one of "open government."
Discussing a somewhat similar form of oath in a case
cited by both counsel: Lehnert (supra)Mr. J;M. Weiler made
comments ~(at'page.157) which seem applicable here,
In my view the oath of office taken by the grievors does not
provide sufficient detail to guide them cPncemirq their
obligations with respect to the release of information.
'Ibe oath simply doss not disclose any concrete'standard of
kehaviour whi& csn be expected of employees. During the
hearing I reguasted evidence concerning how the employer
explained this oath of office to employees at the pnint of
- 63 -
hiring, ar at any other time during their employment. No
evidence was led in this regard. I also requested evidence
atouthowthe employer hadenforced this obligation in the
past- No evidence was forth corn-. The inference that I
draw from tba absence of such evidence is that tba employer
does not make a practice of explain- to employees the
wanvlg of the oath.....
.
The witnesses Markus, Harek and Swant, with many years
of experience in the Publics Service, were all asked about their
understanding of the oath. None gave it a literal interpre-
tation or knew of any hard rule about disclosure. They all
mentioned the word "discretion.' Mr. Markus, a senior
official, did not think the Deputy Minister's letters were
very confidential~or "newsworthy." There was some confusion
expressed about whether a letter must bear the word
"confidential."
If "discretion" is the key word, the grievor was
certainly indiscrete in view of the uproar which ensued and
the eventual dismissal. He was, we are asked to believe, :
acting in good faith with loyalty to the public interest,
and without regard for the personal consequences.
In our view the grievor had not exhausted all his
remedies on November 23. Even if he felt'it would be futile
_ .,i
! ,;-:g
:‘:-...l
. <y -7 .:
- 64 -
to write the Deputy Minister, he could have written to the
Assistant Deputy Minister, Mr. McCormack, or even to the
new Minister, Mr. Pope. Apparently he thought the only
remedy was to inform Mr. Stokes, thereby reaching the public.
It seems to have been effective. At the time of the hearings
nine months later, we were informed that no licence has yet
been granted.
We -do--not think the Oath can-be interpreted
liberally one day and strictly the,next day, ~varying with
whatever seems discrete or'prudent at the moment.
By one
standard, the disclosure of information which may be embar-
rassing to a Ministry or its public servants is al~ways in-~
discrete and therefore prohibited. By another standard, the
public's right to know is paramount, regardless of possible
embarrassment. Both standards call for subjective judgments,
and ~both have-been urged upon us in this case.
._,
On balance, we are persuaded that small operators
in the Port Arthur Management unit and many other members
of the public had a right to know about an internal dispute,
the outcome of which could seriously affect their interests.
To suppress such information by invoking the Oath in its
- 65 -
literal form is not consistent with the principle of o.pen
government.
(5) The Question of Just Cause
It is always possible of course for professional
men to disagree. The employer's position is that this was
merely a case of disagreement between foresters in the
field and foresters in the Regional Office. We are saTis-
fied, however, that it was more than a difference of
professional opinion and that the grievor had grounds for
believing he had a duty to frustrate a scheme to by-pass the,~
requirements of the. Manual.
The matter was summarized by Mr. Marek in a state-
.ment he made at. the Hamilton hearing of February 16, which
was transcribed at the time and is in evidence as Exhibit 2:
It seems to me..... that the Ministry is assign* the field
to supply wxd tich we in the field do not feel exists.
Simple k5 that. Indiscussionwith wlchanan in November, it was-
quite clear. Mr. Auld stated "Weneed the wood. We were assured
the xcd is there and we want to have it." We said it is not
there. He said we are not talking ~4, we are talking area.
We said they needed the area for collateral for ti-e bank. We
cannot give him wxd which is not there but we can give him area.
:
- 66 -
The griever was justified in believing it would
be wrong to facilitate the use of misleading data and an Order-
>:
in-Council licence which would be utilized to obtain a bank
loan. There may be differences of opinion about the method he
used to frustrate that design. In our view, however, his
concerns were legitimate, his loyalty to the Ministry and its
policies remained firm, and he is not a-public servant who can
be regarded as untrustworthy or undesirable by reason of what
he did..
This case does not resemble those in which employees
held press conferences, addressed public meetings, wrote to the
newspapers or went on radio or television to attack policies a~:..~ .-.
of their employers or denounce what they considered to be the
malfeasance of their superiors. Several cases of that kind
have been cited,~one of which was Lehnert (supra), in which both
grievances failed, not only because much publicity had been
sought hut also because their charges were extravagant or un-
founded. Although the facts were very different, the thought-
ful observationsof arbitrator J.M. Weiler (at pages 160 to 162)
are worthy of note, and we adopt similar reasoning here. After
referring to several precedents, such as Stewart (supral he said:
- 67 -
How helpfol are these decisions in determinmg the n&s to be
applied witb respect to the employee who publicly criticizes his
employer? These awards do not go so far as to prevent an
employee, at the risk of losing his job, from making any public
statements that’ sre critical of bk employer. An ahaalute “g3g
rule” would seem to be counter pmductive to the employer for it
would inhibit any dissent within the organ&&on. Employee diisi-
dents can be a valuable resource for the decision-makers in the
enterprisb. Of COUMC this statement does not apply to what owe.
might call “petty” dissidents, i.a., employees who argue wilh their
bosses over matters of every day business judgment, or who
- slander their supervisors, or who bad-mouth their companies. The.
dissidents referred to are those employees who learn of wrong-
doing and seek to correct it, who see pr&ices or produc+.s that
may endanger society and seek to correct them, or who are
directed to do illegal or immoral acts and object to doing them.
For these employees, if no other avenue of redress is availabie,
public expression of certain information, even.though it may be
critical of the employer, should be encouraged not deterred by
fear ~of losing their job. This is not to say that employees have
some constitutional right to aiticiae their employer. While such a
right of pmtected fkee speech has been recognized in the United
States (see Picker@ v; Bocrrd of Educatioa, 391 U.S. 333, no
such constitutionally based protection exists at present in the
Canadian Constitution. Even the Canadian Bill of Rights has been
held to be inapplicable to the arcoof an employee’s right to
publicly criticize his employer (see Kmckcr, s~pm). The issue of
the application of an employee’s obligation of fidelity towards his
employer is far too complex to be silted into an easy formulation.
applicable to all cases. In my view, each case must be decided on
its own facts, taking into account among other~factorj, the content
of the cxjticism, how confidential or sensitive was the information,
the menner in which the criticism was made public, whether the
statements’were true or fake, tbe extent to wbicb the employers
reputation was damaged or .jeopardiaed, the impact of the
criticism on the employer’s ability to conduct its business, the
interest of the public in having the information made public and so
forth.
The duty of fidelity is not designed to pmtect the employer from
ail criticisn~ Nor is an employee’s duty of loyalty aimed at the
personalities who may occupy a particular position in the corpo-
ration or bureauaacy. An employee’s duty of fidelity extends to
the enterprise not the particular individual who may be managing
the enterprise. By the same token, a public servant’s loyalty
extends to the Government, not the political party who happens to
be in office.
- 66 -
In determining whether an empioyee who criticiaes his
emplcyer has breached hls duty of loyalty thereby giving his
employer cause for discipline or discharge, the arbitmtor must
balance the various interests at stake. For example, an arbitrator
may consider the e.xtent to which an employee’s public criticism of
his superiors affects the employers ability to maintain the credi-
bility, confidence or disciplinary authority of the employees’
immediate supervisors and the e.xtent to which the criticism
creates dishamony among co-wprkers. In all cases the interest of
the employer in maintaining an efficient operation must be
n*eighed against the interest of the employees or the general
publx in promoting Cme debate on issues of public concern.
While an employee’s duty of fidelity to an employer does not
prevent him in every circumstance fmm publicly criticizing his
employer, it is recognized that public criticism is not the first step
that should be taken in order to bring wrongdoing within the
enterprise to the attention of those who can correct it. In other
words, while an empioyee in some circumstances may be forced to
“go public”, e.g.; concerning an unsafe chemical or machine which
his company pmduces, before doing so, he should attempt to get
all the facts and give his employer an opportunity to expiain or
correct the problem. Most employers have a variety of mecha-
nisms, formal or informal, under which an employee may lodge a
complaint about the manner in which the enterprise should be’
operated. Only if no satisfaction results from these channels, then
and only then, may an employee “go public”. What is clear is that
an employee will be in brv+xh uf the duty of Gdclity owed to his
_
employer if he makesin& public statements which the employee
either knows them lo bc lalac or is rccklcss aa lo the truth of the
statementi. When an employee fails to use the available resources
to determine the accuracy of critical comments about one’s
employer, or when the employee refuses to use other means to
bring his criticisms of the employer to the attention of those in a
position to rectify the pmblem, he is in my view in breach of the
obligation of loyalty which he owes his employer.
In summary,~ there are several dimensions to an enilzloyee’s
duty of loyalty in the context of public criticism of hisemployer.
An employee is esiected to give his employer both loyalty and
discretion, to serve his empioyer in -good faith and Gdellty.
Conversely, an employee does not ful6l his duty of loyalty if he
deliberately does something which is prejudicial or likely to be
prejudicial to the interests or reputation of his employer. With
respect to public criticisms of the employer, the duty of iidelity
does not impose an absolute ‘gag rule” against an empioyee
making any public statements that might be critical of his
- 69 -
employer. An employee need not, ln every circumstance, follow
Cervantes’ advice, “A closed mouth gathers no flies.” The duty of
fidelity does not mean that the Daniel Ellsbergs and Karen
Silkwoods of the world must remain silent when they discover
wrongdoing occurring at their place of employment. Neither the
public nor the employer’s long-term best interests are served if
these employees, from fear of losing their jobs, are so intimidated
that they do not bring information about wrongdoing at their place
of employment to the attention of those who can correct such
kongdoing. However, .,the duty of gdclity does require the
employee to exhaust mternal “whistle-blowing” mechanisms
before “going public”. These internal mechauisms are desibmetl to
ensure that the employ&s reputation is nor damaged by urnvar-
ranted attacks based on inaccurate information. Internal
investigation providas a sound method of applying the erpertise
and experience of many individuals to all problems that may only
cmcern one employee. Only when these internal mechanisms
prove fruitless hay an emnlovee ena-aee ln uubllc criticism of his
employer-without violating’hk duty if idellty. . . . .
Much of the confusion surrounding this case should
be,dispelled by a statement in t.he Lehnert decision, quoted
above, with which we concur: "An employee's duty of fidelity
extends to the enterprise not the particular individual who
may be managing the enterprise."
Without overlooking the distinctions andqualifications :
so ably stated by Mr. Weiler, we venture to add the following
explanations, with particular reference to the duty of fidelity '^
in the public service.
'Constitutionally speaking, what was established long
ago (and enshrined in the British Worth America Act of 18671
- 70 -
was the Supremacy of Parliament and of the pr,ovincial Legis-
latures in their respective spheres. The “Supremacy of
Parliament" means the supremacy of the legislators, not the
Supremacy of senior civil servants. It is somewhat naive to
imagine that what is properly known to a civil servant must
be denied to a legislator by reason of Section 10 in the Public
Service Act. If it, meant (as it does not mean) that civil
servants may rule without the knowledge or consent of the
legislators, its constitutionality would be questionable.
Distinguished jurists such as Lord Hewart and the late Sir
Carleton Kemp Allan have inveighed against what they termed
"The New Despotism" and "Bureaucracy Triumphant," but the lii. ~.....
fundamental principle stands unchanged: it is the legislators
who are charged with responsibility .(and accountability) for.
defending the public interest and the requirements of the law.
As such, regardless of affiliation, they are entitled to know __
what is happening in the Public Service. The point was made
clearly in the Premier's letter of October 3, 1980, Exhibit 4.
What seems clear is that if elected legislators are kept in
ignorance, then their role becomes superfluous, which would be
a strange result in a professedly democratic society.
On the other hand, it is obvious that certain business
done within Government must be treated as confidential.
- 71 -
.Examples are cabinet deliberations, the preparation of a budget
or the drafting of a report. Such exceptions are justified on
the basis that unfair advantages would be gained if one seg-
ment of the public had access to information not immediately
available to a-11. And such exceptions are subject to the
rule that eventually the results are..disclosed fully and openly
to the legislators, the media and the general public.
It is clear from the record of their meetings and
correspondence in this case that the Regional Staff became
exasperated with the reluctance of the District Staff to set
aside their professional judgment for the purpose of “accomo-
dating" the demands of RFPL. This resulted-in a peremptory demand
to produce ."twenty-year allocations!'..of allowable cut by
December 7, which in turn led to the disclosures made by the
grievor on the night of November 23 and the complaint he filed
in January with the O.P.F.A. Thus the issue of insubordination
v-w
emphasized but not explicitly relied on by counsel --- is
closely related to the charge that the Oath of Office has been
breached.
There is of course a general rule that employees have
an obligation to obey the orders of their superiors. Never-
theless, there are recognized exceptions to that rule, as may
E
- 72 -
be seen by reference to the Occupational Health and Safety
Act. Further, as pointed out by Brown & Beatty (at page 350):
"It has often been asserted by arbitrators that an employee is
justified in refusing to perform an assignment which would
involve him in committing an, unlawful act." 'National Starch
and Chemical Co. (Canada) Ltd (19761, 11 L.A.C. (2d) 280
CRayner); Int'l Nickel Co of Canada Ltd (1974). 6 L.A.C
(2d) 172 (Shime); Kimberly-Clark of Canada Ltd. (1973)
3 L.A.C. (2d) 278 (Brown); Holland Hitch of Canada Ltd.
(1972) 23 L.A.C. 378 (Brandt): Motor Wheel Industries
(Chatham) Ltd. (1970) 22 L.A.C.. 343 (Hinnegan); Stancor
Central L~td. (Peppier Division) (1970) 22 L.A.C. 184 (Weilerl.
Great West Steel Industries Ltd. (1975) 10 L;A.C. (2d) 134
(Shime). A clear example is Baton Broadcasting, Ltd. ~(1966)
17 L.A.C. 180. In that case employees were ordered (for the
convenience of the employer) to remove two legally parked
automobiles without the consent of the owners. They were
disciplined for refusing to do so. Judge Reville held that
having regard to the doubtful legality of management's request,
the refusal was reasonable and discipline could not be justi-
fied. It may be deduced from the numerous cases on the subject
that if an employee has reasonable grounds for believing he
has been asked to do something unlawful, he irould be jus.tified
- 73 -
in refusing to obey such an order, or in delaying to do so
pending his protest. It is an exception to the rule that he
should “obey now and grieve later."
Our conclusions may be summarized by putting questions
suggested by Mr. J.M. Weiler at page 161 of his decision in
Lehnert (quoted above) and by stating answers thereto. This I~:
is done in light of the need to decide each case on its own
facts.
(al What was the content of the criticism disclosed
by the employee?
The essential elements of the criticism disclosed
were, first, that improper pressure had been applied by four
officials of the Ministry on district foresters to "accomodate"
an applican,tfor a licence, contr~ary to law and the policies
of. the Ministry; second, that improper discrimination had been
exercised in favour of one applicant as against another; third,
that the interests of small operators in the area had been
jeopardized; fourth, that the four officials concerned had been
guilty of unethical conduct in their-capacity as professional
foresters and merited discipline by their Association:
.
- 74 -
As to the first element we are obliged to find that
pressure was indeed applied by three Regional officials for
the purpose of "accomodating" a particular applicant, and that
the objective sought was not consistent with the law or the
.policies of the Ministry. We.also.find, however, that there
is no evidence to justify such criticism of the Deputy Minister,
Mr. Foster.
As to the second element, we have found no evidence
to justify the inference that the Deputy Minister or any other
official was improperly discriminatory in relation to one
applicant, BFPL, as against another applicant, Domtar.
As to the third element, there is evidence to suggest
that small operators who held existing one-yearn licences,, had
grounds for fearing (as the griever believed) that their
interests would be jeopardized if a large company received .a
long-term licence or licences in the Port Arthur Management
Unit.
As to the fourth element'; it was for the 0.P:F.A. and
not this Board to determine the validity of the complaints
filed by the grievor, but we have the view (for reasons already
- 75 -
stated) that the complaint against the Deputy Minister was
unfounded, and indeed based upon an unfair interpretation of
two letters
(b).~ How confidential or sensitive was the
information?
The charge originally levelled against the griever
in Mr. Hamilton's letter of February 16 related exclusively ~. >d,.
to two letters and certain Ministry correspondence. In the.
Deputy Minister's dismissal letter of March 24 the charge was
somewhat expanded by reference to "Ministry information and
documents.".
As for the two letters, the evidence fails to show
that they wer~e highly confidential or sensitive. Mr. Edward
Markus, Director of Crown Timber Sales (the only,witness
cal~led by the employer's counsel) said he "d.id not think it
was very confidentiai~stuff" and he described the second letter
as "not very newsworthy" because the subject was "no secret."
There is other evidence that the whole matter lacked
secrecy or confidentiality, although its implications may have
been highly sensitive. The BFPL interest in Black Bay was
. ->’ ).
i :. .; :.; ; :
- 76 -
well-known; Mr. Marek has testified that he had many visits
and inquiries from small operators concerned about their
future. Technical crews were well aware of the District
Foresters' misgivings about FRI data: indeed their reports
contributed to those misgivings.
Apprehensive licencees had undoubtedly been intouch
with their member of the iigislature, Mr. Jack Stokes. As
appears from Exhibit 7, Mr. Stokes stated on June 23 that long
before November 23 he had corresponded with Mr. Koistinen about
"the very things that were communicated to -me later on by an
employee of this Ministry. In July, 1981, I wrote to the
District Manager and asked him what the policy was with regard
to the allocation of timber, what the inventories were and
what would be .th-e: likelihood of a person like Mr. Buchanan
getting sizable cutting rights on the Black Bay peninsula and
other parts' of the Port Arthur management unit."
Referring to the letters to Domtar and Mr. McCormack,
Mr. Stokes also said: "I was talking about that information
in communications with your district manager as early as July.....
The information that is contained in the letter I wrote to you,
Mr. Minister . . . . . was a part of the information I had~received
in talking to Mr. Buchanan. He travelled all the way from
Thunder Bay to my home in Schreiber to discuss his application
with me and to see whether or not he could enlist my support
for further allocations of timber to satisfy the needs at the
Sapawe Mill..... I got information from Domtar, I got infor-
~mation from Mr. Buchanan and I got information from talking
to people within your ministry. I talked to others who needed
wood supplies'in the area....."
There is no evidence that the accuracy of the state-
ments made, by Mr. Stokes (as reported in Hansard and filed with
this Board on consent as Exhibit 7) have ever been contradicted.
In the circumstances, the documents.and information disclosed
by the griever can hardly.be regarded as closely-held "state .~
secrets. *a On the other hand, the matter was sensitive in that
a dispute had developed-within the Ministry, and then revelation
of that dispute resulted in the intensification of public con-
troversy,. which was probably inevitab1e.i.n any event.
(c) What was the manner in which the criticism
was made public?
Strictly~speaking, the criticism was not “made
public" by the grievor. However, be has said himself that
he was not surprised by the publicity following his stalk with
- 78 -
Mr. Stokes. In January, he answered questions from the press.
Wuch was already known about the BFPL application, the support
for it and the opposition to~it. The significant new develop-
ment was the disclosure that the Regional Staff and the
District Staff were at odds about the matter.
I More important was the inference drawn by'the griever
that there had been something improper about the contrast
between the Deputy Minister's letter. to Domtar and his letter
to Mr. McCormack. We have already said that the inference.was
not~justified: Nor was it reasonable to infer that the Deputy
Minister had authorized Regional officers~ to act illegally or
unethically. In this respect the griever was at fault. On the
other hand, such inferences did not bulk large in public con-
troyersy . The press at Thunder Bay was careful to recognize ,.i
conflicting but legitimate interests: the need,of the,Sapawe
mill for an assured supply of wood, and also the need to main-
tain prudent management of resources in the Port Arthur- Manage-
ment unit. For example, Exhibit 3M2, was a report headed:
"Several Sides to Nipigon area logging rights question."
and another, Exhibit 3M4, was ~headed: "Forest industry dilemna:
ecology or employment." These were matters of concern to the
.~ general public as well as to those in the public service and
- 79 -
the forestry industry. In our view the public had a right to
know about it. We cannot accept the argument that the elected
member for the riding most directly involved had no right to
be informed of matters on which he had 'already learned much ~..
from Mr. Buchanan, the District Manager and others.
More substantial is the argument that the griever
acted ~prematurely and before attempting to register his
protest at a higher level within the Ministry. In our view
he could have written to either Mr. McCormack, Assistant Deputy
Minister for Northern Ontario, or to the Minister, Mr. Pope,
and he ought to have done so. This is our opinion notwith- *:L ; -*::~~~ "-' sta~nding the ru.le or tradition that an employee should not
90 "over the heads" of his superiors by communicating'.with
another superior at-a higher level in the chain of command.
The grievor'explains that he was not permitted to send a direct
protest to Mr. Rudolph. That protest, however, was pointless,
Mr; Rudolph being one of those with whom~he and Mr. Marek did
not-agree. The griever's decision was to register his protest.
with Mr. Stokes, assuming it would not be difficult for the
latter to discuss the matter with the Minister, which-in fact
was the result: It was certainly an unusual means of conveying
his protest to the Minister, and the employer has argued that
it constituted a breach~of the Oath of Office and Secrecy.
In a different category was the-complaint filed with
the O.P.F.A. in January, Exhibit 3M15. It was supported by a
lengthy "Report," setting out in considerable de~tail the history
of the dispute. It included the Deputy Minister's letter to
,. Mr. McCormack; several other letters and memoranda quoted i
earlierinthis decision and a memorandum issued by the Deputy
Minister on October 19, 1981, on the subject of "Strategic
Planning in MNR:' in which he emphasized "integrated resource
management." The grievor asked that. "consideration be given
to the expulsion" of Messrs. Foster; Affleck, McHale and
-Rudolph. He concluded by stating: "If no response has been
made to this request for an investigation by January 30, 1982,
I will tender my resignation from this Association on that date."
As a member of the Association, the grievor had the*
right to file a complaint agains.t other members. In our view.~
however, the timing and the content of the document, Exhibit
3M15, was imprudent. It was premature because the dispute had
not yet been concluded one way or the other and the matter
was ~already being, taken up by Mr. Stokes with the Minister.
The content was excessive and seems to have been inspired by
- 81 -
the griever's emotional distress and resentment. Instead of
suggesting "expulsion" the griever would have been wiser to
ask for a ruling on theproprietyof the demands which had
been made on him and Mr. Marek. The threat to resign was
further evidence of excess. Unfortunately, the document could
give the impression that the grievor was pursuing a vengeful
course against four of his superiors.
Reference was made in' the dismissal letter (and also
in argument) to the Ministry's Code of Ethics. That Code
states that an employee.'is expected, among other things, "to
report all known violations of Acts and Regulations adminis-
tered by the Ministry to your supervisor and to the appropriate
authorities," and also to "report any possible conflict of
interest to the Deputy Minister." In view of those admonitions,
it was not unreasonable for the grievor to report what he
believed to be violations to the Minister through his member
of the Legislature. It does not seem reasonable. however,
that he should file so hastily and in such excessive language
L
;:r complaints of unethical conduct with an Association which is
recognized by statute but has no authority over the Ministry.
.‘~
(d) Were the employee's statements true or false?
The substance of the employee’s complaint to Mr.
Stokes, subsequently made public, was that improper pressure
had.been applied on himself and others to make reports or
recommendations contrary to law and contrary to the policies
of the Ministry.
It will have become apparent from earlier conclusions
that the griever's complaint was well-founded in relation 'to
the Regional Staff, but unfounded in relation to the Deputy
Minister.
The grievor also voiced his apprehension that a
licence granted on the basis of misleading or inadequate data
would be used to obtain a bank loan, and that no professional
forester could acquiesce in what was considered to be a kind
of fraud. In our view,~the griever's fears in this connection
were not without reason.
(e) To what extent was the employer's reputation
damaged or jeopardized?
- i3 -
Obviously; public exposure of the dispute caused
embarrassment to the Regional Staff and others. In our
view, however, the reputation of individuals cannot be
equated with that of the employer and in. any event must
take second place to the public interest in being well-
informed and in gaining some understanding of the issues.
The Ministry has made frequent efforts to acquaint the public,
particularly in northwestern Ontario, with its objectives
and plans. It is not unusual for public controversy to arise.
One of the most difficult issues is --- as the Times-News
of January 9 put it: "Forest industry Dilemma: ecology or
employment _ 8, We are not persuaded that public discussion
about the Black Bay peninsula was damaging to the work of the
Ministry, or its~,reputation as the trustee of a great public
resource. On the contrary, it appears to have resulted in
further consideration and study of the timber available
'i
in the area.
Nevertheless, we have an important qualification
to add. This decision must not be taken to mean that any and ..,.. ;-,.
every difference of opinion within a Ministry may be thrown
into the public arena for discussion and resolution.
Disclosure of an internal document, if truly confidential,
- a4 -
is not justified unless commensurate with the gravity of the
occas~ion ore the public need to know. An employee in such
circumstances must be prepared to face the consequences of
disclosure, including the possibility that his view of the
matter will not be upheld. An employee has no duty to conceal
wrong-doing, but he does have a duty to be sure of his facts
and to exercise good judgment in acting on his knowledge.
If an internal avenue of redress or investigation is open
to him, the employee must consider whether that alternative
is appropriate, not because the truth should be hidden but
because the internal remedy may be the most effective. As
Mr. Weiler has said, each case must be decided on -its own
facts, and the initial determination of that question is the
responsibility of the employee concerned.
In this particular case, our c.onclusion is that
the grievor'wa's at fault in some respects to the extent
that there existed cause for discipline, but that in all
the circumstances there was not just cause for dismissal.
This is not the end of the matter. The question
of the appropriate penalty in this case is the next to
be discussed.
- a5 -
(6) The Question of the Penalty
As indicated earlier the griever was at fault in
several respects. Specifically, he failed to send his
protest directly to the Minister or to Assistant Deputy
Minister McCormack, as he could have done in November; his
charge against the Deputy Minister, made to Mr. Stokes and
the O.P.F.A., was unwarranted; his complaint to the O.P.F.A.
was premature and ill-considered. Notwithstanding those
errors of judgment, for which he must accept responsibility,
our conclusion is that he acted in good faith throughout and
without thought of personal advantage. He did not (as others
have done) make his disclosures in a "brown paper envelope."
Instead, he openly challenged the conduct of his superiors
and appears to have been motivated by sincerity and zeal to
defend the requirements of the law and the "sustained yield"
policies of the Ministry. For these reasons we do not think
a severe penalty would be ,justified.
The conclusions reached by the Grievance Settlement
Board-are sometimes erroneously described by the press as
"reports."
The Crown Employees Collective Bargaining Act provides
in subsection (1) of section 19 that "the Board after giving
full opportunity to the parties to present their evidence and
to make their submissions, shall decide the matter and its '
decision i's final and binding upon the parties and the employees
covered by the agreement." In short, this is not a "report;"
it is a decision and it is final unless either party succeeds
in an application for review by the Divisional Court.
The Act further provides in subsection (3) of section
19 as follows:
Where the Grievance Settlement Bmrddetermines that
a disciplinary panalty or dismissal of an employee is
excessive, it may substitute such other penalty for
the discipline or dismissal as it considers just and
reasonable in all the circumstances.
It is the determination of this Board that'the dis-
missal of the grievor was excessive, and further that a just
and reasonable penalty in all the circumstances is suspension
for one week without pay, but with no loss of seniority.
The Deputy Minister's letter to the grrevor, dated
March 24, advised that"you are hereby dismissed from your
- a7 -
employment as a public servant upon receipt of this letter."
It is understood the letter was received on Tuesday, March
30, and thus,dismissal would take effect that day.
In the result, the grievor is reinstated as a
forester with the Ministry of Nation& Resources as and from
Tuesday, April 6, 1982. He is entitled to all rights and
benefits from that date, but the Ministry may take credit for
earnings he has had from whatever source since April 6. If
the grievor is currently committed' to other work, he should be
allowed a reasonable period to complete it. Any difficulty
arising in that connection or in computing compensation may
be referred to this Board, which retains jurisdiction to
decide such matters.
The Board is grateful to learned counsel and all
four witnesses for their efforts to assist in resolving this
difficult case.
Dated at Toronto
this lathday of
November, 1982
7:3330
. ..y >.l EBJ:sol
"1 dissent" (see attached"
Member sR,,k ------
Member
DISSENT OF EMPLOYER MEMBER
Z am unable to agree with the decision of the
major;ity and, therefore, dissent. This dissent does not
deal with the technical aspects of issuing a long-term
,::3*: lice-e . The real.issue before the'board is--whether the
griever was cKsmissed for cause, that'is to say, would the
griever be an acceptable employee of the Ministry of Natural
.Resoul;rces based on his demonstrated conduct and unacceptable
attitude. I
-In dealing with this question I have related to the six
I points raised by Mr. C. Riggs as set out on Rage 51 of the
award.
(1) The grievor was a short service employee
(2) .The OffenCe was flagrant, not merely technical
(3) .No attempt had been made by the grievor to deal with senior civil servants
(4) ,There was no substances in his charges
(5) He had indicated he would "do itiagain"
"&$$, ~x~J:$gj>9, g&&: f ~&&$j&&, (6) The offence of giving information to Mr. Stokes was
compounded by giving even mores t+ o.P.F'.A. ~..,~
4 w1 (1):
Griever was a short service employee (January 1, 1981~March
'. + 1982) and was such: I g --He had not been involved in the actual licensing procedure
before
:-t-He assumed that there could.be no resolution to internal .?&$M&nistry) technical differences
N&publicly ,z.+
$T. -&St
set himself in judgement, over his principals:
er--Deputy Minister of Natural Resources
;M* Affleck--Acting Regional Director, Ministry of Natural Resources' ;
0,
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D.E. McHale-- Acting Assistant Regional Director, Ministry
of Natural Resources
J.T. Rudolph--Regional Forester, Ministry-of Natural Resources
all professional foresters and whose combined experience
approaches 100 years.
Dealing with (2) :
The offence,was flagrant, not merely technical:
Any intentional violation of the "Oath of Office and~secrecy"
must be considered as a flagrant offence, particularly when
Ministry documents were, used and responsible Ministry of
Natural Resources officials were implicated by direct reference.
The violation was in no way accidental or incidental.
Dealing with (3):
No attempt had been made by the grievor to deal with senior
civil servants.
In this matter I am in agreement with my colleagues on this :~.
Board reference page 79:
In our view he could have written to either Mr. McCormack,
Assistant Deputy Minister-for~Northern Ontario, or- to the
Minister, Mr. Pope, and he ought to have done so.
In not doing this he was also in violation of the Ministry
of Natural Resources Code of Ethics.. Arbitrator J. M. Weiler's
comments in Lehnert (quoted at page 68) are clearly applicable:
In other words, while an employee in some circumstances
may be forced to "go public", e.g. concerning an unsafe
chemical or machine which his company produces, before doing so, he should attempt to get all the facts and give
&is employer an opportunity to explain or correct the problem.
Most employers have a variety of mechanisms, formal or informal, under whjch an employee may lodge a complaint
about the manner in which the enterprise should be operated. .:(.: 1
.Only 'if no satisfaction results from these channels, then and only then, may an employee "go public". What is clear
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is that an employee will be in breach of the duty
of fidelity owed to his employer if he makes false
publiC statements which the employee either knows them
'to be false or is reckless as to the truth of the
statements. When an employee fails to use the available
resources to determine the accuracy of critical com- m*nts about one's employer, or when the emolovee refuses ';'i--use other means to bring his criticisms of the
employer to the attention of those In a p . . osltion to rectif
the p roblem, he is in my ’
view in breach of the obllgatlon sloyalty whxh he owes his employer. (emphasis added)
$: There oan be no question that the &i&or was in breach of e
obligation of loyalty and fidelity.
.ing with (4):
$There was no substance in his charges.
would like to point out that:
--NO license had been prepared
.--NO license had been submittedtfor Order-in-Council
--NO license had been~issued
ifeel mY colleagues, in dealing with the Deputy-Minister's
&ters at page 56, deal with this question and in fact
lify the griever's reasons for his actions as they
$te to alleged unprofessional and unethical conduct by
principals.
The Deputy Minister' s letters. -
in his letter of April 22, the Deputy Minister gave
bonvincing reasons for rejecting the Domtar proposal.
,, his letter of June 5 to Mr. McCormack, the Deputy
sinister also gavel reasons for according priority
o the needs of the Sapawe sawmill, and he made no
hggestion that in doing soothe law or'the Manual bould~be disregarded. There was no justification 5r the inference that the second~.letter amounted to iflturnaround" or that officials in the field were
ing encouraged to break the law for the benefit
I;
BFPL. The Deputy Minister had a legitimate interest
alleviating the Sapawe shortage of wood. ~.Accordingly, asked that "top priority be given to the Buchanan
w~~.luest for "any unallocated coniferous allowable @ in the Crown Management units in Thunder Bay and
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Nipigon". He did not, however, suggest any improper
or illegal act in attempting to meet the need. In
our view, the griever's accusation against the
Deputy Minister was unfounded.
;: :
Dealing with (5):
He had indicated he would "does it again".
I have great concern with the grievor's return to the Ministry
of Natural Resources and how long it will be before this
type of situation or any other situation will be recreated
by the grievor and the results of such will again be
before the Grievance Settlement Board.
Dealing with (6):
The offence of giving information to Mr. Stokes was com-
pounded by giving even more to 0.P.F.A.
Exhibit Ml5
REPORT ON THE V'NPROFESSIONAL CONDUCT OF MINISTRY OF
NATURAL RESOURCES EMPLOYEES TO THE ONTARIO PROFESSIONAL
FORESTERS' ASSOCIATION.
D. M. MacAlpine, R.P.F.
December, 1981
In this vicious unprecedented attack on four of his principals
who by all standards are highly responsible and respected
members of the Ministry of Natural Resources and members of
the Ontario Professional Foresters' Association, I find
confirmation of the character of the griever;' My colleagues
of this board have found need to be critical.of the grievor's .~
actions (pp 80-81):
, I .! _:./
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In a different category was the complaint filed with the O.P.F.A. in January, Exhibit #M15. It was sup-
ported by a lengthy "Report", setting out in consider-
able detail the history of the dispute. It included
the Deputy Minister's letter to Mr. McCormack, several
other letters and memoranda quoted earlier in this
decision and a memorandum issued by the Deputy Minister
on October 19, 1981, on the subject of "Strategic Planning in MNR", fin which he emphasized "integrated
resource management". The grievor asked that "con-
sideration be given to the expulsion" oft Messrs. Foster,
Affleck, McHale and Rudolph. He concluded by stating:
"If no response has been made to this request for an
investigation by January 30, 1982, I will tender my~
resignation from this Association on that date".
As a member of the Association, the grievor had the
right to file a..c&plaint against other members. In our
view however, the timing and the content of the document,
Exhibit 3M15, was imprudent. It was premature because the
dispute had not yet been concluded one way or the other
and the matter tias already~ being taken up by Mr. Stokes
with the Minister. The content was excessive and seems
to have been inspired by the grievor's emotional distress
and resentment.~
Instead of suggesting "expulsion" the grievor would
have been wiser to ask for a ruling on the propriety of the
demands which had been made on him and Mr. Marek. The
threat to resign was further evidence of excess. Unfortunately
the document could give the impression that the grievor
was pursuing, a vengeful course against four of his superiors.
Reference was made in the dismissal .letter (and also
in'argument). td the Ministry's Code of Ethics. That Code
states that an employee is expected, among other things,
I :
:‘.:, .i ::,, ~ ‘~.,d
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to report all known violations in Acts and Regulations
administered by the Ministry to your supervisor and
to the appropriate authorities";
and also to
report any possible conflict of interest to the
Deputy Minister.
In view of those admonitions, it was not unreasonable for
the grievor to report what he believed to .be violations to
the Minister through his member of the Legislature. It
does not seem reasonable, however, that he should file
so hastily and in such exdessive language complaints of
-unethical conduct with an Association which is recognized
by statute but has no authority over'the Ministry.
I would like to add that the grievor was, in my opinion,
in violation of his Professional Associations Code of
Ethics. Further, I am in disagreemeLt with the majority
where it is stated that "...it was not unreasonable for
the grievor to report what he believed to be violations
to the Minister through his member of the Legislature".
I am of the view that the grievor was wrong in failing to
exhaust the ,internal lines of authority and that there
was a duty on him to report his views to the Deputy and
the Minister NOT through his member of the legislature to
the Minister:' ,.
Finally, I am concerned that the majority decision was
based in part upon the grievor's allegations that the ob-
jectives being sought were not"consistent with law". There
is neither evidence before the Board with respect to any
. . . 7
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breach of any law, nor is it the function or within the
jurisdiction of the Board to so find.
SUMMARY:
--The grievor knowingly and intentionally.acwd.in breach
of his "Oath of Office and Secrecy".
--He grossly violated the Ministry's Code of Ethics -
--He used the Ontario Professional Foresters' Association
to further his attack on his principals (and in doing so
violated the Code of Ethics of that Association). ~.
CONCLUSION:
It is my conclusion that the grievor did not conduct
himself,~as a suitable or acceptable employee of the Ministry
of Natural Resources during his short term of employment:
indicated no concern for his actions or the appropriate
recognition of authority: stated he would do it again. The
grievor's conduct cannot be treated by a suspension as would
apply as a deterrent to such actions as:
--absenteeism
--lateness
--insubordination
He has categorically stated he would do it'again--so discipline
as proposed by my colleagues will not make him a suitable
and acceptalbe employee. For these reasons, I would
have dismissed the grievance.
CONCERN:
I have personal concerns with the grievor's return
to the Ministry of Natural Resources in whichever district
it may be. It would seem that the wounds are far too
deep to be healed by time especially when aggravated by
. . . a
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the stated "do it again" attitude and his vengeful attack
on senior officials. The mistrust that must follow cannot
further, then effective operation of the Ministry of Natural
Rsources in future years.
PETER D. CAMP, MEMBER
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