HomeMy WebLinkAbout2001-0901.Globerman.06-08-02 DecisionCrown Employees
Grievance Settlement
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GSB# 2001-0901
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Association of Management, Administrative and
Professional Crown Employees of Ontario
(Globerman) Association
- and -
The Crown in Right of Ontario
(Ministry of Health and Long-Term Care) Employer
BEFORE Ken Petryshen Vice-Chair
FOR THE UNION James McDonald
Sack Goldblatt Mitchell LLP
Barristers and Solicitors
FOR THE EMPLOYER Yasmeena Mohamed
Senior Counsel
Ministry of Government Services
HEARING May 14, June 29 & 30, July 12 & 13,
October 21, December 15, 2004;
February 14, 15 & 18,
July 11, 13 & 14, 2005.
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Decision
I have three grievances before me filed by Mr. D. Globerman. During the last few
months of his employment, Mr. Globerman was on a temporary assignment with the Ontario
Seniors’ Secretariat (“the OSS”). Prior to this temporary assignment, he had been employed
with the Ministry of Health and Long-Term Care (hereinafter referred to as “the Ministry” or
“the Employer”). While employed with the Ministry, Mr. Globerman became involved with
establishing and operating a charity known as The Running to Daylight Foundation (“the
Foundation”). The circumstances giving rise to Mr. Globerman’s grievances, for the most part,
relate to his activities with the Foundation.
After he was requested in March of 2000 to comply with his duty to disclose a potential
conflict of interest, Mr. Globerman disclosed his involvement in the Foundation to the Ministry’s
Deputy Minister. In a letter dated June 28, 2000, Deputy Minister D. Burns advised Mr.
Globerman to either terminate his involvement with the Foundation or terminate his status as a
public servant. In a grievance dated May 1, 2001, Mr. Globerman claims that, “the employer has
improperly, unfairly and unreasonably directed me to terminate all involvement with The
Running to Daylight Foundation; and in so doing, has discriminated by reason of my family
status and failed to accommodate my family status contrary to the Ontario Human Rights Code”.
The Association did not pursue the allegation that the Ministry had discriminated against Mr.
Globerman contrary to the Human Rights Code. Rather, it took the position that the Deputy’s
direction to Mr. Globerman violates his fundamental rights of freedom of expression and
association as guaranteed by the Canadian Charter of Rights and Freedoms (“the Charter”).
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Mr. Globerman was issued a reprimand for insubordination when an article about him
and the Foundation appeared in the September 2001 edition of Homemakers magazine. In a
grievance dated November 29, 2001, Mr. Globerman claims that, “the employer has improperly,
unfairly, unreasonably and without just cause issued to me a letter of reprimand dated October
24, 2001; and in so doing, has discriminated by reason of my family status and failed to
accommodate my family status contrary to the Ontario Human Rights Code.”
In September of 2003, Mr. Globerman and the Foundation co-sponsored and participated
in a Forum on “Rage Against Ageism in Health Care”. This was the culminating event which
lead to his discharge. In a grievance dated December 18, 2003, Mr. Globerman complains that,
“the employer has discharged me without just cause; and that in so doing, the employer has
violated my rights under the Canadian Charter of Rights and Freedoms, and has discriminated by
reason of my family status and failed to accommodate my family status contrary to the Ontario
Human Rights Code.”
After a suspension with pay pending an investigation, Mr. Globerman was discharged by
letter dated December 8, 2003. As well as referring to the events which led to his discharge, this
letter refers to earlier events which gave rise to his other grievances. The discharge letter reads
as follows:
Dear David:
On October 3, 2003, you were placed on a non-disciplinary suspension, pending the
outcome of an investigation into the events leading up to the publication of an article
entitled “Ageism in health care is really hidden rationing” in the September 26, 2003
edition of the Toronto Star. On November 7, 2003, we met with you and your
AMAPCEO representative as part of our investigation.
This article summarized many of your comments delivered at a Symposium on Ageism in
Health Care, an event co-sponsored by The Running to Daylight Foundation on
September 23, 2003 at the St. Lawrence Centre in Toronto. The article was based on the
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reporter’s coverage of the event supplemented by an interview that you granted the
following day.
Our investigation has revealed the following:
- On May 30, 2001, I was advised in writing that you had resigned from your
position as president of the Running to Daylight Foundation and had “ceased
any active involvement in the organization”. Despite this assurance that you
had finally complied with the Deputy Minister’s previous direction, you never
stopped your Foundation related activities and you did not resign as president.
Your explanation is that this commitment was obtained under duress. Your
position on this matter is that no one, including your Deputy Minister, has the
right to restrict your activities related to the Running to Daylight Foundation.
- In March of 2003, you indicated that you were fit to return to work from an
extensive sick leave that you began in May 2001. To facilitate your return to
meaningful work, and as a possible settlement for your two outstanding
grievances, it was agreed that you would assume a six month acting assignment
at the Ontario Seniors’ Secretariat as a Policy Advisor. On March 29, 2003,
when you met with the manager of this position, she advised you that while on
this acting assignment, you would be required to disclose any perceived or
potential conflict of interest related to the Running to Daylight Foundation or
any other activity. You were advised to refrain from any activity that would
place you in a conflict of interest. You advised your manager that the
Foundation was still inactive.
- The co-sponsoring organization of the September 23 Symposium was The
Ontario Coalition of Senior Citizens Organizations, a key stakeholder of the
Ontario Seniors’ Secretariat where you have been working on secondment since
July 2, 2003. You were in preliminary discussions regarding this event at the
time you first met with the Ontario Seniors’ Secretariat. Planning and delivery
of the event took place during your secondment. At no time before or during
your secondment did you disclose to your manager or to the Deputy Minister
the details of your involvement with the Foundation, in particular, your co-
sponsoring of this event. On the contrary, you were secretive about your
activities. As you put it at the November 7 meeting, you did not want “another
hassle”.
- As the president of the Running to Daylight Foundation, you formed a
relationship with The Ontario Coalition of Senior Citizens Organizations. You
indicated at our meeting that this relationship was formed for the purpose of
directing financial support to your Foundation.
- The Running to Daylight Foundation was instrumental in promoting and staging
the Symposium, giving your phone number and the Running to Daylight email
address as a contact on promotional and resource material. You were a key
speaker at the event.
- On September 19, 2003, your manager at the Ontario Seniors’ Secretariat saw a
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promotional flyer for this Symposium. She expressed her alarm and concern to
discover that the Running to Daylight Foundation was co-sponsoring this event
since you had previously told her that the Foundation was inactive. When she
asked you what your involvement would be and why you had not disclosed this
in advance, you indicated that she had no cause for concern. You still did not
disclose that you were a speaker at this event.
By way of background, let me remind you of all of the events that has brought us
to where we are today. On March 22, 2000, having seen and heard about your new
Foundation, I met with you to express my concern that your activities as the president of
the Running to Daylight Foundation may be a conflict of interest. As a result you made a
disclosure to the Deputy Minister on April 28, 2000. On June 28, 2000, the Deputy
Minister communicated his opinion to you in writing, advising you to either terminate
your status as a civil servant or terminate all involvement with the Running to Daylight
Foundation. The letter contained the opinion that continued involvement with the
Foundation, while a civil servant, constituted at least a perceived and potential conflict of
interest. The letter made it clear to you that a public servant must avoid all conflicts of
interest, whether actual, potential or perceived.
On February 12, 2001, the Running to Daylight Foundation appeared as a presenter on a
standing committee agenda for Bill 135, Public Hospitals Amendment Act. Although you
did not appear at this committee meeting, the speech appears on the hard drive of your
computer so it is clear to me that you are the author. The content of the speech was
critical of the quality of care received by seniors in the publicly funded health care
system in Ontario.
On February 17, 2001, an article appeared in the Toronto Star entitled “Group helps
seniors navigate health system”. As well as being further evidence that your Foundation
was still active, the article also contained critical comments regarding the quality of care
the elderly receive in the publicly funded health care system. The columnist refers to you
as “…Globerman, who ironically is a financial
consultant with the Ontario Ministry of Health ….”.
In the September 2001 edition of Homemakers Magazine, an article appeared entitled
“Live or Let Die”. This article contained further criticism from you regarding the quality
of the publicly funded health care system. On October 24, 2001, I issued a letter of
reprimand for being insubordinate to me and to the Deputy Minister by your continued
association with the Foundation, thus perpetuating the conflict of interest. You were
warned that further actions that perpetuate this conflict of interest would result in further
discipline, up to and including dismissal.
To summarize, the Ontario Seniors’ Secretariat has advised me that they have lost all
confidence in your ability to carry out your duties as a Policy Advisor, free from a
conflict of interest. They no longer trust that you are able to exercise the judgment
required of that position, which requires frequent interface with external stakeholders for
the purpose of participating on working groups and committees on behalf of the
Secretariat. This participation, in turn, requires an understanding of political sensitivities
across ministries and sectors. In your recent private activities you have not displayed
such understanding.
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I have also lost all confidence that you will ever remove the conflict of interest that flows
from your participation in the Running to Daylight Foundation and your status as a civil
servant. You have been directed to terminate all involvement in the Foundation or
terminate your status as a civil servant. You have done neither. Your actions in the past
and in particular, your recent participation in the Symposium on Ageism in Health Care
demonstrate a conscious decision on your part to disobey a direction from the Deputy
Minister. This constitutes insubordination, a perpetuation of a conflict of interest and a
breach of you duty of trust, loyalty and good faith owed to the employer, the Crown in
Right of Ontario.
Your actions have undermined your employment relationship to the point where your
continued employment is no longer possible. As a result, by the authority delegated to
me by the Deputy Minister under Section 22 (3) of the Public Service Act, I hereby
dismiss you for cause, effective today.
You have the right to grieve under Article 20 of the AMAPCEO collective agreement
April 1, 2001to March 31, 2004.
Please return all Ministry of Health and Long-Term Care and Ontario Seniors’ Secretariat
assets to Archie Outar by December 31, 2003. Any personal effects will be sent to you.
The Association takes the position that the Ministry and the Deputy Minister were
wrong when they determined the Mr. Globerman’s involvement with the Foundation constitutes
at least a perceived and potential conflict of interest. As noted previously, it also claims that the
Ministry violated Mr. Globerman’s Charter rights. The Association takes the position that there
was no just cause for the reprimand issued to Mr. Globerman and for his discharge. The
Association seeks reinstatement for Mr. Globerman and compensation for his losses.
Thirteen hearing days were required for these grievances, including almost three days for
argument. Well in excess of one hundred documents were filed as exhibits. I concur with
counsel for the Association’s assessment that this is a complicated case. The Employer called
four witnesses, namely, Mr. M. Springman, Counsel and Group Leader in the Ministry’s Legal
Service Branch, Mr. A. Outar, Manager, Finance and Information, Health Care Programs,
Toronto Region, Ms. M. Weber, Regional Director, Toronto Region and Ms. E. Esteves,
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Manager, Policy Initiatives, in the OSS. The Association called Mr. Globerman to testify. In
determining the facts, I considered the oral and documentary evidence and the submissions
relating thereto. I resolved conflicts in the evidence by utilizing the usual tests, including an
assessment of what is most probable in the circumstances. I note that Mr. Globerman was not
present for all of Ms. Weber’s testimony. Before the commencement of the hearing on October
21, 2004, Mr. Globerman made a statement to Ms. Weber which caused her to become upset.
She indicated that she was not prepared to continue with her testimony on that day and that she
did not want to continue her testimony at a later time in the presence of Mr. Globerman. Without
the need for any intervention from me, the parties agreed to adjourn the hearing for that day and
that Mr. Globerman would not be present for the remainder of Ms. Weber’s testimony. Although
not in the hearing room, Mr. Globerman was able to hear the remaining testimony of Ms. Weber
and consult with counsel by telephone.
Before addressing the specific circumstances giving rise to each grievance, it is helpful to
set out a general overview of the facts. When this hearing commenced in May of 2004, Mr.
Globerman was fifty-two years of age. He commenced his employment with the Ministry in July
of 1985. During the relevant period, Mr. Globerman was employed as a senior financial
consultant in the Health Care Programs Division of the Ministry’s Toronto Region. This
position is included within the Association’s bargaining unit of professional and supervisory
public servants. Mr. Globerman reported to Mr. Outar, his Manager, and Mr. Outar reported to
the Regional Manager, Ms. Weber. In general, the Ministry funds and administers the health
care system in Ontario and it regulates hospitals and nursing homes. With a budget in excess of
four billion dollars, the Toronto Region has responsibility for most of the health institutions
within its area, including hospitals, long-term care facilities and various community agencies.
Mr. Globerman was the lead for the mental health program in the Toronto Region, with most of
8
his time devoted to financial management, analysis and monitoring of the Centre for Addiction
and Mental Health (“the CAMH”).
Mr. Globerman created the Foundation to honour the life of his father, Mr. Ben
Globerman. Ben Globerman died in 1996 at an Ottawa hospital at eighty-five years of age from
the effects of a stroke. Mr. Globerman strongly believes that his father received sub-standard
medical care, that such care was directly responsible for his death and that the reason his father
did not receive appropriate care was because of his age. After meeting others who also believed
their elderly relatives received sub-standard care, Mr. Globerman decided to create the
Foundation to address ageism in the health care system and to improve the standard of care for
the elderly, particularly when they are in hospitals and long-term care facilities.
Between 1997 and October of 1999, Mr. Globerman spent considerable time in
developing the Foundation. In 1997, the Foundation was registered with the Toronto
Community Foundation, an umbrella organization that provides assistance to smaller funds.
During this initial period, Mr. Globerman solicited financial and other support for his concept,
defined the goals of the Foundation, recruited advisory and honorary Board members, a special
consultant and prepared for the launch of the Foundation. The Ministry discovered a record of
these activities on the hard drive of Mr. Globerman’s Ministry computer.
A media release sent out prior to the launch of the Foundation indicates that the
Foundation “will provide elderly patients with Patient Representatives who will help them access
quality health care, act as intermediaries with health care professionals when needed and educate
the patient and family.” The media release also indicates that, “The launch begins an ambitious
fund-raising program for the innovative support program that will provide representatives for the
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elderly, initially starting in the Ottawa and Toronto areas.” As a Foundation pamphlet makes
clear, the Foundation would not provide patient representatives directly to elderly patients.
Rather, it would allocate funds to registered charities, such as nursing and seniors organizations,
to allow them to provide support for the elderly.
The launch of the Foundation occurred on October 25, 1999, in the Queen Victoria
Ballroom of the Sutton Place Hotel in Toronto. Ms. Jane Hawtin, a television/radio broadcaster,
made the opening and closing remarks. Presentations were made by five individuals, including
Dr. Carolyn Bennett, MP for the riding of St. Paul’s in Toronto, Councillor Anne Johnston
representing the Toronto Task Force on Seniors and Mr. Globerman, as President of the
Foundation. In written material provided at this event, a biography for Mr. Globerman indicates
that, “Foundation President David Globerman is a financial consultant with the Health Care
Programs Division of the Ontario Ministry of Health and Long Term Care. He has worked on a
number of health care issues in the Ministry’s mental health, substance abuse and corporate
policy areas since he joined the Ministry in 1985…” This material also discloses that the
honorary Board members of the Foundation include Dr. Carolyn Bennett, Jane Hawtin and
Karen Kain. Dr. Michael Gordon is described as a special consultant to the Foundation.
The written material refers to vision and mission statements, and the values and goals of
the Foundation. The goals of the Foundation are as follows:
1. To provide patient representatives, who on behalf of the patient and family,
will confer with the health care team to review the treatment and care provided
and work to resolve outstanding issues.
2. To educate and consult to patients and families, to make them informed, active
and effective participants in the decision-making around treatment and care.
3. To affect change at the system level by providing public education, stimulating
discussion, fostering research, participating in the development of public policy,
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collaborating with planners and working with service providers, professional
associations and regulatory bodies around issues relating to the access and
quality of treatment and care of the elderly.
The Foundation pamphlet, under the heading “THE NEED” notes that, “Furthermore, it is
important that the planning and funding of our health care system keep pace with the needs of an
aging population. This can only occur if the opinions of elderly patients and their families are
given voice in those areas responsible for developing and managing the system.” The pamphlet
advises where contributions to the Foundation may be directed.
One of the purposes of the launch, as evidenced by the media release, was to announce
the existence of the Foundation and to generate some media attention. I was provided with a
number of articles in publications that referred to Mr. Globerman and the Foundation. There was
no suggestion by Mr. Globerman that the articles contained any inaccurate information.
In an article entitled “Ageism is rampant in health care” that appeared in the Life section
of the Toronto Star on October 30, 1999, Mr. Globerman and the Foundation were featured. A
picture of Mr. Globerman, his father and nephew accompanied the article with the notation that
the Foundation had been launched that week. The article made brief references to Ben
Globerman’s hospital experience, to the Foundation’s efforts to raise money to help community
organizations train and provide patient representatives and to some of the Foundation’s Board of
Directors. The author noted that Mr. Globerman “…ironically works in the policy branch at the
Ontario Ministry of
Health.”
In the January 17, 2000 edition of MacLean’s, an article entitled “All in the
Family” dealt with taking care of aging relatives and the shortcomings of institutional
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care. The reference to Mr. Globerman and the Foundation is as follows:
David Globerman, for one, was so incensed by the care his father received by an Ottawa
hospital in 1996 that he started the Running to Daylight Foundation, a Toronto-based
organization devoted to improving institutional eldercare. Globerman, 46, says he
believes his 85-year old father was given low priority by medical staff because of his age:
he died within weeks of entering hospital, largely Globerman believes, because doctors
treated him for pneumonia when in fact he had suffered a stroke. “Clearly, there is a bias
in the health-care system against the elderly,” says Globerman, who is a financial
consultant to the Ontario ministry of health in Toronto. As a society, we don’t value
them. So when there is a lack of resources, they fall to the bottom of the barrel.”
Mr. Globerman and the Foundation were mentioned in a Sunday Sun article on February
5, 2000, entitled “Looming crisis for elderly”. After referring to Mr. Globerman as a financial
consultant with the Ministry, his father’s treatment and the purpose of the Foundation, the author
wrote:
He worries that kind of neglect of the elderly may only become more prevalent as more
seniors flood an overcrowded, under funded system, especially in a society that does not
particularly value the elderly.
“You have a recipe for disaster” warns Globerman. “Right now, the number of
Canadians 65 and older is one in eight. When I’m 65, it’ll be one in five. It’s time now
for the baby boomers to take responsibility for improving the health- care system for our
parents and ourselves – because we’re not that far behind.”
In an Ottawa Citizen article that appeared on November 23, 1999, the author writes about
the Foundation, Mr. Globerman and the goals of the Foundation, particularly the funding of
patient representatives. After commenting on the fact that in twenty years
the number of persons sixty-five years and older will be one in five, Mr. Globerman is
quoted as saying, “It is going to be an issue that affects everybody because, unfortunately, the
health system is not working the way it should. Because if it did, there wouldn’t be a need for an
organization like this.”
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Mr. Globerman did not consider it necessary to advise the Ministry about his activities
with the Foundation. Ms. Weber became aware of his involvement when some of the articles in
the press came to her attention. She was immediately concerned about his involvement with the
Foundation and what he said about the health care system, given his position as a senior financial
consultant with the Ministry. She took some time to review the conflict of interest policy and got
advice from the Ministry’s Human Resources Division. Ms. Weber then met with Mr.
Globerman on March 22, 2000. She provided Mr. Globerman with a copy of the “Government
of Ontario Conflict of Interest and Post Service Directive for Public Servants and Public
Officials” (“the Conflict of Interest Directive”), a directive based on Regulation 453/97 under the
Public Service Act. She reviewed certain provisions of the Conflict of Interest Directive with
him in detail. Ms. Weber also told him that his activities with the Foundation may be in conflict
with his role as a senior financial consultant and she asked him to comply with the duty to
disclose set out in section 23 of the Conflict of Interest Directive.
Mr. Globerman complied with his duty to disclose by filing a written submission to the
Deputy Minister D. Burns dated April 28, 2000. He referred to his position with the Ministry as
that of a “Regional Financial Consultant”. His submission referred to the purpose and activities
of the Foundation in detail and he set out his views on why there was no conflict of interest. Mr.
Globerman included with his submission the material about the Foundation that was available at
the launch on October 25, 1999, including the pamphlet, the media release and a document
disclosing who was on the Honorary Board.
The package relating to Mr. Globerman’s disclosure was sent to Mr. Springman by the
Deputy Minister’s office. Mr. Springman has been counsel in the Ministry’s Legal Services
Branch since July of 1991, and a group leader for over four years. Prior to joining the Ministry,
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he was with the Ontario Law Reform Commission for over seventeen years and was Director for
six years. He has also taught law at Osgoode, the University of Toronto and Queen’s. For the
last thirteen years, Mr. Springman has been the lawyer who deals with the conflict of interest
issues that arise in the Ministry.
Mr. Springman reviewed the package consisting of Mr. Globerman’s written submissions
as well as the information about the Foundation. He then consulted with Ms. Weber to
determine Mr. Globerman’s duties as a senior financial consultant and then compared his role
with the Ministry with his activities with the Foundation. Mr. Springman reviewed previous
conflict of interest files where a public servant performed services for a charity. He then
prepared a draft opinion for the Deputy Minister about whether Mr. Globerman was in an actual,
a perceived or a potential conflict of interest, as well as a draft letter to Mr. Globerman for the
Deputy Minister to sign. Ms. Weber and Human Resources reviewed and approved the draft
opinion. Mr. Springman concluded that Mr. Globerman was in an egregious conflict of interest
that could not be managed and that the only option in the circumstances was for the Deputy
Minister to direct Mr. Globerman to resign from the Foundation or resign from his position with
the Ministry.
The Deputy Minister agreed with Mr. Springman’s opinion. In a letter dated June 28,
2000, Mr. Burns provided Mr. Globerman with the following directive:
Re: Conflict of Interest (Running to Daylight Foundation)
Thank you for your April 28, 2000 letter advising me of your involvement in the Running
to Daylight Foundation, The Ben Globerman Memorial. You have asked my advice
concerning whether this private activity constitutes a conflict of interest under Regulation
453/97, made under the Public Service Act, or under the conflict of interest directives of
the Ministry.
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A public servant must refrain from engaging in any private conduct that would place him
or her in an actual, potential or perceived conflict. In our view, your public service
responsibilities and your active role in a charity whose goals and policies may wholly or
partly conflict with those of the Ministry places you in at least a perceived and potential
conflict of interest.
As a public servant, you have a broad advisory and resource allocation role in the area of
mental health services, an area that relates in part to the care of the elderly (the exclusive
focus of the Foundation). Yours responsibilities include the provision of advice and
services to transfer payment agencies, consumers and members of the public respecting
Ministry policies, guidelines, procedures and practices. You are also to provide advice
on the allocation of Ministry funds within Toronto Region.
These ministerial duties are particularly problematic in light of the stated “vision” and
“goals” of the Foundation and your central position in it. With respect to advancing the
interests of the elderly, the policies that you actively advocate on the part of the
Foundation might well clash with some or all of the Ministry policies for which you are
directly or indirectly responsible as a public servant.
Accordingly, a reasonable perception and potential is that this difference of views would
or might influence or detrimentally affect your ability to perform those ministerial duties,
particularly the more public duties that you see as contrary to the goals of the Foundation.
A further reasonable perception is that the Foundation has or might have some unfair
advantage over other charities as a result of your position in the Ministry. I note, in this
connection, that your biography accompanying the creation of the Foundation
specifically indicated that you were employed by the Ministry. This information may
create the impression that you have a kind of expertise, or experience in the Ministry, and
perhaps Ministry “contacts”, that could benefit the Foundation.
Given my view that your private involvement with the Foundation, however
commendable, constitutes at least a perceived and potential conflict of interest, it is my
advice that you either terminate all such involvement or terminate your status as a public
servant.
Thank you for seeking my advice in accordance with the Public Service Act regulations
and Ministry directives.
In December of 2000, many months after the Deputy’s directive, Ms. Weber asked Mr.
Globerman if he had responded to the Deputy Minister’s letter. He responded by indicating that
the Deputy’s letter did not indicate that a response was required. As Ms. Weber was attempting
to address compliance with the Deputy’s directive to Mr. Globerman, she became aware of the
agenda for a Standing Committee of the Legislative Assembly dealing with Bill 135, an act to
amend the Public Hospitals Act to regulate the use of restraints that are not part of medical
15
treatment. The agenda disclosed that Jane Hawtin and Mr. Globerman as President would be
appearing before the Standing Committee on behalf of the Foundation on February 13, 2001. In
light of the Deputy’s decision, Ms. Weber was concerned that Mr. Globerman was continuing to
participate in Foundation activities. Ms. Weber met with Mr. Globerman on February 6, 2000, to
discuss his attendance before the Standing Committee. Mr. Outar also attended the meeting.
Although Mr. Globerman believed that his attendance before the Standing Committee was not
problematic, Ms. Weber impressed upon him that he should not participate or attend at the event.
During the meeting, Mr. Globerman discussed the Foundation and his view that many seniors are
not receiving proper medical attention in a health care system that has issues relating to a
shortage of nurses and medical staff. He indicated that he could not resign because he is an
integral part of the Foundation and that he also needed a job. Later that day, Mr. Globerman
advised Ms. Weber that he would not appear before the Standing Committee and that he would
remove references to his name from the presentation. At that time, Ms. Weber told Mr.
Globerman to take two days off with pay to decide how he will respond to the Deputy’s
directive.
Ms. Jane Hawtin made the presentation to the Standing Committee on behalf of the
Foundation. Mr. Globerman wrote the presentation, as evidenced by the fact the presentation
was on the hard drive of his Ministry computer. Ms. Hawtin spoke at some length before the
Standing Committee indicating the Foundation’s support for the Bill 135. During the
presentation, reference was made to some concerns of the Foundation, namely the cutbacks in
nursing and other health care resources and the fact that there are not enough safeguards built
into the system. The presentation included the comment that, “We would not be adjusting the
standards to what we are willing to finance but rather adjusting the finances needed to meet the
standards.” It also included the following perspective: “While it’s true that the responsibility for
16
guaranteeing access to the highest-quality care is the responsibility for all of us – the funders, the
planners, the service providers, the professional associations, the consumers, and the media – the
ultimate responsibility has to lie with government. The buck has to stop somewhere.”
Between February and May of 2000, after the meeting in which Ms. Weber told him to
decide how he would respond to the Deputy’s directive, Mr. Globerman, through counsel and at
times with the assistance of his bargaining agent, attempted to convince Ministry officials that
there was no conflict of interest or that he could alter his role with the Foundation to eliminate
any conflict. During this period, Mr. Springman continued to be involved in providing advice to
Ministry officials.
In a letter dated February 21, 2001, to Ms. Weber, Mr. Globerman’s counsel raised a
number of matters on behalf of Mr. Globerman. In response to the description of Mr.
Globerman’s duties and responsibilities as set out in the Deputy’s directive dated June 28, 2000,
she wrote as follows:
In particular, Mr. Globerman’s funding responsibilities as a Financial Consultant at the
AM-19 level, are restricted to community health programs and the Centre for Addiction
and Mental Health (“CAMH”) which is a specialty psychiatric hospital. Community
mental health programs and the CAMH focus specifically on the seriously mentally ill
population, and not the elderly per se. His funding responsibilities for the community
mental health programs are restricted to the review of one time and surplus requests and
are in an advisory capacity only. Final approval is given by the Regional Director. As
far as CAMH, Mr. Globerman is involved in funding analysis (surpluses/deficits) based
on objective criteria, and any base or one time allocations are not within his scope but
rather within the realm of senior management. Mr. Globerman does not have any direct
or indirect influence on the funding of general hospitals, long-term care facilities,
community care access centres or other organizations that deal with the elderly as the
majority of their target population.
The letter notes that the Foundation has not requested funding from the Ministry and that it does
not intend to do so. It also indicates that any material the Foundation distributes will no longer
refer to Mr. Globerman’s position with the Ministry and that Mr. Globerman will make a
17
concerted effort to ensure that any coverage of the Foundation will not mention his involvement
with the Ministry. The point is made that the Foundation is complementary to the work of the
Ministry, just like other charities such as the Cancer Society and the Kidney Foundation.
Counsel expressed the hope that the parties could meet and resolve the issues.
In a written response to Mr. Globerman dated March 5, 2000, Ms. Weber advised
that the Deputy Minister had reviewed the information provided from his counsel and that the
Deputy concluded that Mr. Globerman was still in a conflict of interest. She indicated that the
Ministry was prepared to meet to discuss whether the conflict of interest can be eliminated. The
meeting between Mr. Globerman and his representatives and Ministry officials took place on
March 22, 2001. In a letter dated March 29, 2001, sent to Ms. Weber subsequent to the meeting,
counsel for Mr. Globerman put forward the following two options for the Ministry to consider:
Option 1
Mr. Globerman remains as President of the Running to Daylight Foundation but will
focus his involvement on fund-raising for the Foundation and answering queries on
behalf of the public (e.g. information about the Foundation, referral to other services,
referral to patient representatives, hearing complaints, offering suggestions for resolution
of clinical impasses). In an effort to reduce his public profile and visibility, he would not
be involved in any public speaking about the Foundation or the health care system nor
would he liaise with the media regarding the organization.
Option 2
Mr. Globerman resigns as President of the Running to Daylight Foundation but will focus
his involvement on fund-raising for the Foundation and answering queries on behalf of
the public (e.g. information about the Foundation, referral to other services, referral to
patient representatives, hearing complaints, offering suggestions for resolution of clinical
impasses). In an effort to reduce his public profile and visibility, he would not be
involved in any public speaking about the Foundation or the health care system nor
would he liaise with the media regarding the organization.
Counsel indicated in this letter that if Ministry still took the position that Mr. Globerman must
remove himself from all involvement with the Foundation, he would comply without prejudice to
18
his right to file a grievance. On behalf of Mr. Globerman, counsel requested that he be granted
until May 31, 2001, to develop an infrastructure to take his place. It was asserted that Mr.
Globerman needed the time to select and train a new president, personnel to take over fund-
raising and administrative duties and volunteers to handle the large volume of public queries he
receives.
In a letter to Mr. Globerman dated April 23, 2001, Ms. Weber responded on behalf of the
Ministry by indicating that the proposed options would not serve to remove the conflict of
interest. In this letter, Ms. Weber indicated that Mr. Globerman could have until May 31, 2001
to terminate all involvement with the Foundation, with certain conditions. One of the conditions
was that Mr. Globerman had to provide, as of May 31, evidence that he has fully complied with
the Deputy Minister’s directive. He was advised that the failure to provide such evidence may
result in disciplinary action.
Mr. Globerman found the Ministry’s response to his proposals to resolve the dispute
“bizarre” and he concluded that Ms. Weber was not bargaining in good faith. He testified that it
was obvious to him that Ms. Weber was trying to destroy the Foundation. In a letter to Ms.
Weber dated May 30, 2001, Mr. Globerman’s counsel advised her of his decision as follows:
Further to your letter to Mr. David Globerman dated April 23, 2001, we advise that Mr.
Globerman has resigned from his position as President of the Running to Daylight
Foundation. The new President of the Foundation is Danial Globerman.
David has ceased any active involvement with the organization.
Shortly after receiving the Ministry’s response dated April 23, 2001, Mr. Globerman filed
his grievance. In early May of 2001, he also provided Mr. Outar with a doctor’s note and
advised him that he would be taking a medical leave, which he commenced on May 14, 2001.
Mr. Globerman testified that he found his dealings with the Ministry over the conflict of interest
19
issue to be very stressful and that he experienced a deep depression. Mr. Globerman was off
work for medical reasons for almost two years. In a letter to Mr. Outar dated February 18, 2003,
Mr. Globerman advised him that he would be returning to work on March 3, 2003. Mr.
Globerman did not actually return to work until July 2, 2003, when he commenced his temporary
assignment with the OSS.
Approximately four months after Mr. Globerman commenced his medical leave, an
article appeared in a magazine that caused the Employer some concern. In an article on ageism
entitled “Live or Let Die” in the September 2001 edition of Homemakers magazine, the author
refers to Ben Globerman’s hospital experience, the family’s lawsuit against the hospital, Mr.
Globerman’s launch of the Foundation and briefly what the Foundation does. These references
are only a small portion of a lengthy article on ageism. Mr. Globerman is referred to in the
article as a “Toronto financial consultant”. This article led to Mr. Globerman’s reprimand.
Mr. Globerman testified that while on the medical leave he had a conversation with Mr.
Outar about the conflict of interest issue which affected his perception of the Ministry’s conduct.
On March 25, 2002, at approximately the time when the office was being relocated, Mr.
Globerman went to the office and discovered that his personnel belongings had been removed.
He testified that during a discussion with Mr. Outar about this issue, Mr. Outar told him at one
point that Ms. Weber had ordered someone to throw out the boxes with his belongings. Mr.
Globerman testified that he did not believe Mr. Outar when he said this because “he did not have
a track record of being believed.” Mr. Globerman testified that he then raised the conflict of
interest issue by asking Mr. Outar where all this was coming from and suggested that it was not
coming from Ms. Weber, but from the Minister’s and Premier’s office. Mr. Globerman further
testified that he asked Mr. Outar whether their dispute is really about a conflict of interest or is it
20
about the issues the Foundation was raising and that Mr. Outar responded that it was about the
issues the Foundation was raising. Mr. Globerman then left the office very upset with the view
that everything started to make sense as to why the Ministry took an all or nothing approach and
why it wanted to shut him and the Foundation down. He testified that he now believed that the
Ministry was lying to him and playing games with him. He testified that he concluded that the
issue between them related to the substandard care seniors received, not a conflict of interest, and
that there was an abuse of power “coming from the top.” As will become evident, Mr.
Globerman relies in part on this conversation with Mr. Outar and the conclusions he reached
based on the conversation to justify his subsequent conduct.
Mr. Outar testified that the March 25, 2002, conversation was not unlike others with Mr.
Globerman where Mr. Globerman would do all the talking and not give him much opportunity to
respond. Mr. Outar testified that at times the relationship with Mr. Globerman was very stressful
and that Mr. Globerman was abusive in his tone and the words he used. He indicated that he
would not respond to many of the things Mr. Globerman said. Mr. Outar strongly denied that he
told Mr. Globerman that the dispute was really about the issues the Foundation was raising and
never implied that there was involvement from the Minister’s and Premier’s office. It was put to
Mr. Outar during cross-examination that he told Mr. Globerman during this conversation that the
Ministry would make his life miserable when he returned to work. Mr. Outar denied that he said
this. In his evidence, Mr. Globerman did not indicate that Mr. Outar made such a statement to
him.
In reviewing the testimony relating to the March 25, 2003 conversation in the context of
all the evidence, I find it impossible to believe Mr. Globerman’s version of the conversation.
Counsel suggested that Mr. Outar’s silence in the face of various statements put to him by Mr.
21
Globerman amounted to agreement to what Mr. Globerman asserted or at least that it was not
unreasonable for Mr. Globerman to believe that Mr. Outar agreed with him. However, Mr.
Globerman testified that Mr. Outar specifically told him that the Ministry’s concern was with the
issues raised by the Foundation and not with a conflict of interest. There is no basis to believe
that Mr. Outar would tell Mr. Globerman any such thing. Mr. Globerman may have believed
that the dispute had to do more with political considerations than a conflict of interest. However,
his testimony about his conversation with Mr. Outar appears to be an effort to prove that his
views in this regard were corroborated by the Employer and to rely on this corroboration to
justify his subsequent conduct. I accept Mr. Outar’s testimony that he did not make the
statement attributed to him by Mr. Globerman and that Mr. Globerman was not truthful when he
testified that Mr. Outar had conveyed to him that the dispute was not really about a conflict of
interest.
Mr. Springman testified about a telephone call he received from Mr. Globerman
during the course of these events. During this call, Mr. Globerman was yelling at Mr. Springman
while alleging that there was a conspiracy by the Government against the Foundation. Mr.
Globerman alleged that Mr. Springman knew there was a conspiracy and that he was
participating in it. Mr. Springman found the call disturbing. He ended the call by denying any
conspiracy and advising Mr. Globerman that he could not discuss the matter further. Mr.
Springman noticed from the call display feature on his telephone that Mr. Globerman called him
several times after the initial call, but he did not answer.
At some point, Mr. Globerman had expressed an interest in securing a position outside of
the Ministry. Mr. Outar made inquiries to see if this was possible and his efforts were
responsible in part for securing Mr. Globerman a temporary assignment with the OSS. Mr.
22
Globerman met with Ms. Esteves on May 29, 2003, to discuss a temporary assignment with
Policy Initiatives, OSS. Based on this discussion, Ms. Esteves was prepared to offer Mr.
Globerman the temporary assignment. I will comment on this discussion later in more detail. As
noted previously, Mr. Globerman commenced working for the OSS as a policy advisor on July 2,
2003. While on this secondment, his home position remained with the Ministry.
The Foundation co-sponsored and participated in a Forum entitled “Rage Against Ageism
in Health Care” at the St. Lawrence Centre in Toronto on September 23, 2003. The other
sponsor of the Forum was the Ontario Coalition of Senior Citizens Organizations, a stakeholder
of the OSS. Ms. Hawtin was the emcee at the Forum, making the opening and closing remarks.
Mr. Globerman, who was identified as the President of the Foundation, also spoke at the Forum.
A media release about the Forum notes that the Foundation “is also involved in strengthening the
healthcare system by providing public education, encouraging discussion, fostering research and
participating in the development of public policy.” The material distributed at the Forum
included a Toronto Star article from the February 17, 2001 edition which refers to the
Foundation and describes Mr. Globerman as a “financial consultant with the Ontario Ministry of
Health.” Mr. Globerman was interviewed on the day after the Forum and an article appeared in
the Toronto Star on September 26, 2003. The article referred to Mr. Globerman, the Foundation
and examples of sub-standard care received by the elderly in hospitals and long-term care
facilities. Mr. Globerman was not identified in the article as a Ministry employee. Mr.
Globerman testified that he began preparing for the Forum in early 2003 and that it occurred on
the seventh anniversary of his father’s death.
Because of his participation in the Forum on behalf of the Foundation and the article in
the Toronto Star, Ms. Weber suspended Mr. Globerman with pay pending an investigation. Ms.
23
Esteves terminated his temporary assignment. An investigation meeting was held on November
7, 2003, which was attended by Ms. Esteves and Mr. Springman. After spending some time to
review its options and the appropriate response, the Ministry terminated Mr. Globerman’s
employment for the reasons set out in the letter dated December 8, 2004.
With respect to the delay in moving forward with the conflict of interest grievance,
I note that I was advised during opening statements that the parties met with a Vice-Chair in
February of 2002 to attempt to settle the grievances which were then outstanding. These efforts
were obviously unsuccessful. The settlement discussions led to another proceeding however,
eventually all three grievances were scheduled for hearing before me.
The Conflict of Interest
The Conflict of Interest Directive is based on a regulation under the Public Service Act.
The purpose of the Conflict of Interest Directive is to “enhance public confidence in the integrity
of public servants and the decision making process in government…” A conflict of interest arises
in “any situation where an individual’s private interests may be incompatible or in conflict with
their public service responsibilities.” One of the principles every public servant shall conform to
is set out in section 6(d) of the Conflict of Interest Directive as follows: “When appointed to
office, and thereafter, public servants and public officials must arrange their private interests to
prevent real or potential conflicts of interest. If a conflict does arise between the private interests
of a public servant or public official and the official duties and responsibilities of that individual,
the conflict shall be resolved in favour of the public interest.” Section 7(a) provides that “A
public servant or public official who does not comply with the measures in this directive will be
disciplined as appropriate. Disciplinary measures may include discharge or termination of
employment.” The relevant parts of section 10 provide as follows:
24
A public servant or public official shall not engage in any outside work or business
undertaking:
(a) that is likely to result in a conflict of interest
(b) that interferes with the individual’s ability to perform his or her duties and
responsibilities; for example, by placing demands on the individual that are
inconsistent with his or her duties or calling into question the individual’s
responsibility to perform his or her official duties objectively
(c) in which an advantage is derived from his or her employment as a public servant or
public official
…
(d) in a professional capacity that will, or is likely to, influence or affect the
carrying out of his or her duties as a public servant or public official
Mr. Springman testified at some length about how he engaged in the exercise of
determining whether Mr. Globerman was in a conflict of interest. It is useful to review a portion
of his opinion letter to the Deputy Minister in order to appreciate the basis for his conclusion that
Mr. Globerman was in a conflict of interest and how this situation should be remedied. After
referring in some detail to Mr. Globerman’s public service position and the purpose and activity
of the Foundation, Mr. Springman writes in his opinion letter dated June 12, 2000, as follows:
ISSUES
1. Whether Mr. Globerman’s involvement in the Running to Daylight Foundation
constitutes an actual, potential or perceived conflict of interest,
in breach of the Public Service Act regulations and/or Ministry directives.
2. What action ought to be taken by the Ministry if it is determined that Mr.
Globerman is in a conflict of interest.
OPINION AND RECOMMENDATION
Mr. Globerman’s role as the creator and active will of, and the public spokesperson for, a
charity whose goals and policies may wholly or partly conflict with those of the Ministry
places him in at least a perceived and potential conflict of interest, in breach of the Public
Service Act regulations and/or Ministry directives. Accordingly, it is recommended that
Mr. Globerman should be given the choice to either terminate all involvement with the
Foundation or terminate his employment with the Ministry. The program area agrees
with this approach.
I have drafted a letter from you to Mr. Globerman reflecting this recommendation.
25
DISCUSSION
Whether a conflict exists
A conflict of interest may be actual, potential or perceived. A public servant should not
engage in a private activity that constitutes any type of conflict. The requirement to
avoid conflicts is particularly important for public servants, on whom a public trust is
reposed.
One of the goals of the Running to Daylight Foundation is stated as follows:
To effect change at the system level by providing public education,
stimulating discussion, fostering research, participating in the development of
public policy, collaborating with planners and working with service providers,
professional associations and regulatory bodies around issues relating to the
access and quality of treatment and care of the elderly.
In other words, the Foundation, through its “key spokesperson” Mr. Globerman, is
involved in actively seeking “change at the system level” in order to advance the health-
care interests of the elderly. Presumably, “participating in the development of public
policy”, “building strategic partnerships with a broad range of stakeholders” and
“addressing [the] shortcomings” of the “health care system” could easily involve Mr.
Globerman in activities that pit his private interests at the Foundation against the interests
of the Ministry.
After setting out in his letter the “vision statement” of both the Foundation and the
Ministry, Mr. Globerman states that “It is obvious that the Ministry’s and the
Foundation’s goals are not incompatible rather they are basically the same”. Indeed, he
concludes that “positive changes by any one of those entities could hardly be seen as in
conflict”. However, for our purposes the proper focus ought not to be on the very broad
“vision statement” or “goals” of the Foundation and the Ministry, however compatible
Mr. Globerman assumes them to be. Rather, the essence of the possible conflict lies in
the specific activities of both entities in actually implementing these goals and in the
specific role played by Mr. Globerman in each entity.
Mr. Globerman concludes his letter by stressing that the Foundation is “a viable
organization representing the public interest” and, as such, “looks forward to working
with the Ministry of Health to advance our health care system”. The letter makes clear
the anticipated working relationship between the Foundation (his private interest) and the
Ministry (his employer, and obviously representing the public interest).
There is, however, clearly no guarantee that the Foundation and the Ministry will come to
the same conclusions respecting what, if anything, is required to provide elderly people
“with the highest quality care” (the Foundation’s Vision Statement) and, if action is
needed, how to provide it. Accordingly, while Mr. Globerman’s Foundation has stated
an interest in partnering with the Ministry in advancing the health care of the elderly, it is
hardly inconceivable that the goals and actions of these two entities will clash, either in
respect of specific policy initiatives or, indeed, globally.
26
Any such clash could result in the Foundation’s active pursuit of a “public policy” wholly
or partly inimical to the policy or the other interests of the Ministry. In this connection, I
should point out that the program area client who has dealt with Mr. Globerman has said
that he is a passionate advocate of the right of the elderly. However commendable such a
passion may be, as a public servant Mr. Globerman owes to the Crown a duty of good
faith and loyalty and must not place himself in a position where his duties to the Ministry
and his private interest compete, may potentially compete or may be perceived to
compete.
Having regard, therefore, to Mr. Globerman’s relatively broad range of advisory, fund
allocation and other functions, including regular contact with stakeholders and the
general public, a reasonable person may come to the conclusion that his role as a public
servant conflicts or may conflict with his role as President of the Foundation. It is
entirely possible that the Foundation would not endorse some or all Ministry decisions or
the absence of any decisions, relating to the health care of the elderly. The perception
may well be that this difference in opinion would or might influence or detrimentally
affect Mr. Globerman’s ability to perform any ministerial duties, particularly his more
public duties, that he sees as contrary to the goals of the Foundation.
A further reasonable perception is that the Foundation has some unfair advantage over
other charities as a result of Mr. Globerman’s position in the Ministry. For example, it
may be thought that the Foundation has better access to decision-making within the
Ministry and, therefore, to any funds that may be allotted to charities by the Ministry.
From the Ministry’s perspective, Mr. Globerman’s dual employment and involvement in
the Foundation may make it extremely difficult even to consider any future allocation of
funds for the Foundation, since such action may give rise to a perception that the
Foundation has derived an unfair advantage because of that employment.
In connection with this kind of perceived identification or relationship with the Ministry,
I should re-emphasize the fact that Mr. Globerman’s biography accompanying the
creation of the charity specifically indicated that he was employed at the Ministry. It is a
reasonable assumption that mention of his public service employment is intended to
convey a particular message to potential donors and others, namely, that he has a kind of
professional expertise or experience, and perhaps ministry “contacts”, that could benefit
the Foundation and its goals and therefore that ought to instil a significant measure of
confidence in those who might wish to contribute to the charity in some fashion. Again,
a reasonable perception is that the Foundation, and Mr. Globerman, derive a private
advantage from Mr. Globerman’s employment as a public servant.
In short, Mr. Globerman’s involvement in the Foundation constitutes at least a perceived
and potential conflict of interest, in violation of the Public Service Act regulations and
Ministry directives. The program area agrees with the foregoing assessment and its
implications.
27
The Remedy if a Conflict Exists
Having determined that Mr. Globerman’s activities with the Foundation constitute at least
a perceived and potential conflict of interest, the next issue concerns what action the
Ministry ought to take. The mere existence of a conflict does not necessarily mandate a
particular Ministry response.
There are a number of obvious alternatives once it is determined that a conflict exists:
1. Mr. Globerman could be given the choice of either terminating all involvement with
the Foundation or terminating his status as a public servant.
2. Mr. Globerman could be given the choice of either resigning as President of the
Foundation and not involving himself in any of the decision-making activities of the
Foundation (for example, as a member of the Board) or terminating his status as a
public servant.
3. Mr. Globerman could be permitted to retain his presidency of and involvement with
the Foundation, but could be prohibited from becoming involved in any Foundation
decision, negotiation or matter that directly or indirectly involves the Ministry,
particularly where the issue of Foundation funding by the Ministry or the Provinces is
raised.
4. If Mr. Globerman is allowed to remain involved in some way with the
Foundation (see options 2 and 3), the Ministry could impose as a condition a
prohibition against identifying himself, either directly or indirectly, as a
Ministry or Crown employee in any Foundation literature or activity.
Alternative 1 is the remedy used most often, since its goal is the full elimination of the
source of the conflict. It has been employed in previous conflict situations involving
charitable involvement, although in virtually all of those cases the Ministry also served as
at least a partial funder of the charity in question. Of course, the issue of possible
Ministry or provincial funding or other support for the Foundation may well be raised by
Mr. Globerman at some future date.
In another case, Alternative 3 was used; however, this approach was adopted with some
misgivings. This alternative is frequently used in the context of conflicts involving
directors of private corporations. But it is certainly arguable that, in the public interest,
public servants and the Ministry ought to be held (and almost invariably are held) to a
higher standard than private citizens and private entities.
Alternative 2 is a bit of a hybrid. On the one hand, it attempts to remove Mr. Globerman
from the decision-making of the Foundation, but it also leaves him free to engage himself
otherwise in its activities. Like Alternative 3, Alternative 2 has much to do with optics.
In both cases, although in different degrees, to a significant extent we are left to trust that
Mr. Globerman will not take part in any prohibited activity, despite his continued
involvement in the Foundation.
28
Alternative 2 is more draconian, of course, since it effectively removes Mr. Globerman
from decision-making that may, in fact, have nothing whatsoever to do with the Ministry
and may possibly have no bearing on the public perception of the impact of his dual roles
on his Ministry duties. Alternative 3, on the other hand, more specifically addresses the
cause of the conflict, since it allows him to act as President, etc., but seeks to prohibit him
from carrying on only those activities that involve the Ministry.
The decision concerning which approach to adopt depends in no small measure on
the individual in question. I understand from the client that, as a passionate advocate of
the interests of the elderly Mr. Globerman has tended to show an insufficient sensitivity
to the distinction between his Foundation role and his public service duties. Indeed, his
letter to you indicated that he had invited the Minister to be the keynote speaker at the
formal launch of the Foundation. He obviously did not perceive such an invitation as in
itself inappropriate, nor did he see anything untoward for the Minister.
Therefore, on balance, to permit Mr. Globerman to retain any position or involvement
with the Foundation, however formally circumscribed, while remaining a public servant
at the Ministry does not seem to be a reasonable option in the best interests of the
Ministry or in the public interest. It is therefore recommended that Mr. Globerman
should be given the choice to either terminate all involvement with the Foundation or
terminate his employment with the Ministry. The program area agrees with this
approach.
I would be pleased to discuss this matter with you further, at your convenience.
As noted previously, the parties engaged in attempts to resolve the conflict of interest
dispute between February and May of 2001, subsequent to the Deputy’s directive. During this
process, the parties spent some time exploring the issue in detail. Mr. Globerman and his
representatives took advantage of the opportunity to make proposals with a view to convincing
the Ministry that there was no conflict of interest or that it could be managed if there was a
conflict. The Ministry gave due consideration to the submissions that were made on behalf of
Mr. Globerman. The evidence discloses that the Ministry even considered options that were not
advanced by Mr. Globerman’s representatives. At the end of the process, the Ministry continued
to be of the view that Mr. Globerman’s activities with the Foundation constitute a perceived and
potential conflict of interest. The process concluded with the Ministry’s response as set out in
Ms. Weber’s letter dated April 23, 2001 to the two options proposed by Mr. Globerman. The
relevant portion of the response reads as follows:
29
…
It is the Ministry’s view that neither proposed option would serve to remove the
conflict of interest. Your proposal to maintain your involvement with the Foundation,
even on a reduced level, and particularly your intention to focus on fundraising and on
responding to questions from the public, continue to be problematic in light of the nature
and scope of the conflict. Both activities reflect your ongoing public identification with
the Foundation while you remain a public servant with the Ministry.
Moreover, we do not agree with the opinion of your counsel that either option would
place you in the same position as a “volunteer” for any kind of health care entity. In the
ordinary case, a volunteer has no formal institutional connection with the creation of the
particular organization and is not, in essence, the directing or controlling mind of that
body in terms of its overall “vision” and “goals” and its day-to-day activities.
At the heart of the conflict is not simply your formal status as President, nor your overtly
public identification with the Foundation. Rather, the essence of the conflict lies in the
inherent tension between your public service duties and the “vision”, “goals” and policies
of the Foundation in which you will continue to have a central, although somewhat
reduced, role, even under either proposed option. The courses of action actively
advanced by the Foundation may well come in conflict with those adopted or considered
by the Ministry. These Ministry policies are ones for which you are or may be directly or
indirectly responsible as a public servant.
…
The central issues before me are whether there was at least a perceived or potential
conflict of interest between Mr. Globerman’s involvement with the Foundation and his role as a
public servant, and whether the direction from the Deputy Minister which was confirmed by the
Ministry in Ms. Weber’s letter of April 23, 2001, was a reasonable response in the
circumstances. The Association and Mr. Globerman do not challenge the validity of Regulation
453/97 under the Public Service Act and the Conflict of Interest Directive. They do not dispute
that Mr. Globerman owes a duty of fidelity and loyalty to his Employer. What they do challenge
is their application to Mr. Globerman and his involvement with the Foundation in the
circumstances of this case. As noted previously, the Association takes the position that the
Deputy’s directive to Mr. Globerman violates his Charter rights and cannot be justified under
section 1 of the Charter. The Ministry takes the position that any infringement of Mr.
Globerman’s Charter rights constitutes a reasonable and justifiable limit in the circumstances.
30
The relevant provisions of the Charter are as follows:
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set
out in it subject only to such reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic society.
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the
press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
During their extensive submissions on the Charter issue, counsel referred to a
number of decisions. Counsel for the Ministry relied on the following decisions: Re Ministry of
Attorney General, Corrections Branch and British Columbia Government Employees’ Union
(1981), 3 L.A.C. (3rd) 140 (Weiler); Re Canada Post Corporation and Canadian Union of Postal
Workers (1984), 19 L.A.C. (3rd) 356 (Swan); Re Amoco Fabrics Ltd. and Amalgamated Clothing
and Textile Workers Union, Local 1606 (1984), 17 L.A.C. (3rd) 425) (O’Shea); Fraser v. Canada
(Public Service Staff Relations Board), [1985] 2 S.C.R. 455; Forgie and Treasury Board
(Immigration Appeal Board), [1986] C.P.S.S.R.B. No. 310 (Bendel); Re British Columbia and
B.C.G.E.U. (1988), 14 C.L.A.S. 1 (Ladner); Re Gilbert Plains Health Centre Inc. and M.O.N.A.,
Local 38 (1989), 15 C.L.A.S. 72 (Hamilton); Port Moody, District 43, Police Services Union v.
Port Moody District Police Board, [1991] B.C.J. No. 243 (B.C.C.A.); Re Sun-Rype Products
Ltd. and Teamsters Union, Local 213 (1994), 34 C.L.A.S. 630 ( Taylor); Re Alberta and
A.U.P.E., Loc 6 (Smith) (1996), 57 L.A.C. (4th) 400 (Moreau); Re Burnaby (City) and Burnaby
Firefighters’ Assn., Loc 323 (Kilpatrick) (1997), 66 L.A.C. (4th) 169 (Devine); Re Philip Utilities
Management Corp. and I.U.O.E., Loc. 772 (Gorda) (2000), 86 L.A.C. (4th) 225 (Rose); Scott v.
31
Canada Customs and revenue Agency, [2001] C.P.S.S.R.B. No. 60 (Giguere); Re Treasury
Board (Health Canada) and Chopra (2003), 124 L.A.C. (4th) 149 (P.S.S.R.B); Stenhouse v.
Canada (Attorney General), [2004] F.C.J. No. 469; Haydon v. Canada (Treasury Board), [2004]
F.C.J. No. 932; Read v. Canada (Attorney General), [2005] F.C.J. No. 990; Re British Columbia
Public School Employers’ Association and British Columbia Teacher’s Federation (2004), 129
L.A.C. (4th) 245 (Munroe); and, Haydon v. Canada (Treasury Board), [2004] F.C.J. No. 932.
In addition to the Fraser decision, counsel for the Association relied on the following
decisions: Osborne v. The Queen and two other actions (1991), 82 D.L.R. (4th) 321 (S.C.C.); Re
Treasury Board (Indian and Northern Affairs Canada) and Horn (1992), 32 L.A.C. (4th) 250
(P.S.S.R.B.); Re Treasury Board (Health Canada) and Chopra (2001), 96 L.A.C. (4th) 367
(P.S.S.R.B.); Haydon v. Canada (T.D.), [2001] 2 F.C. 82; Alberta Union of Provincial
Employees v. Alberta, 2002 ABCA 202 (CanL11) (Alta C.A.); Re Hallborg and The Crown in
Right of Ontario (Ministry of Revenue) (1979), 22 L.A.C. (2nd) 289 (G.S.B.); and, Ross v. New
Brunswick School District No. 15 (1996), 133 D.L.R. (4th) 1 (S.C.C.).
The majority of these decisions can be described as “criticism cases”. They are cases in
which an employee, often a public servant, was disciplined for being publicly critical of his or
her employer. For example, in Fraser, supra, a pre-Charter decision, a supervisor employed by
Revenue Canada was suspended and then terminated for criticizing policies concerning
metrification and the constitutional entrenchment of a charter of rights. The Public Staff
Relations Board found that the discharge was appropriate and the decision was upheld by the
Supreme Court of Canada. The Court noted that the right to free expression is not absolute and
that the importance of maintaining an impartial public service and the duty of loyalty must be
32
balanced with an employee’s right to freedom of expression. The result of this balancing of
rights depends on the circumstances of the particular case. In the world of the Charter, a similar
balancing of interests takes place. One of the disputes between the parties is whether the instant
case can be characterized as a criticism case.
Counsel for the Employer relied on the criticism cases when arguing that Mr. Globerman
was critical of the Government and therefore breached his duty of loyalty to the Crown.
Although there can be an overlap between the two types of cases, there is a difference between a
criticism case and a conflict of interest case. In the instant case, Mr. Globerman did not simply
engage in public commentary on Government policy, as occurred in Fraser. Rather, through the
Foundation, he engaged in outside activities that allegedly gave rise to a conflict of interest
concern. Although troubled by the interviews he gave to the press and the articles that were
written, the Employer did not discipline him for being critical of the Government. The Ministry
treated the case at hand as a conflict of interest case by comparing his outside activities and his
role as a public servant. This is clearly the focus of Mr. Springman’s opinion letter to the Deputy
Minister. As counsel for the Association pointed out, Mr. Springman does not even refer to Mr.
Globerman’s public statements relating to the Foundation. I will therefore consider this as a
conflict of interest case in the classic sense and that the issues before me are those described
previously. This does not mean that Mr. Globerman’s public statements on behalf of the
Foundation are irrelevant. In my view, they are relevant to the extent that they assist in
illustrating the goals and the activities of the Foundation. The criticism cases are of assistance
only to the extent they provide some guidance in addressing the issues that arise in a conflict of
interest case.
33
During his submissions, counsel for the Association noted that Mr. Springman was not an
expert witness and that he was an advocate for the Ministry in this case. For various reasons,
counsel argued that I should give little or no weight to the opinion Mr. Springman gave to the
Deputy Minister. For example, he emphasized that Mr. Springman was working with a job
description that did not describe Mr. Globerman’s position and that he incorrectly determined
that Mr. Globerman performed certain functions, particularly with respect to fund allocation.
Counsel submitted that, having heard the evidence, I was in the best position to determine the
relevant facts and whether a conflict of interest exists in this case.
I certainly agree that I must determine the facts and the result in this case based on the
evidence before me. Whether or not Mr. Springman relied on inaccurate information is not
particularly relevant because my task is to decide, based on the evidence, whether Mr.
Globerman was in at least a perceived or potential conflict of interest because of his activities
with the Foundation. Mr. Springman’s opinion is not determinative of this issue.
In determining whether a conflict exists within the meaning of the Conflict of Interest
Directive, it is necessary to focus on the job of the public servant and the nature of public
servant’s outside activities. The Courts have recognized as legitimate the objective of
Government to maintain an effective and impartial public service. The purpose of the Conflict of
Interest Directive is designed in part to achieve that end. As noted by Mr. Springman, a conflict
of interest may be actual, perceived or potential. Certainly, a perceived or potential conflict of
interest can detrimentally affect the effectiveness and impartiality of the public service. An
assessment of whether a conflict exists on any of these levels must be made objectively using the
test of a reasonable well-informed person.
34
What is particularly significant about Mr. Globerman’s job is that he is employed by the
Ministry in the Toronto Region. As a senior financial consultant working as the lead in the
mental health program, he analyzes financial matters, primarily for the CAMH, and to a lesser
extent for other mental health agencies. These health entities provide services to a population
that includes the elderly. In essence, Mr. Globerman is involved with the financial allocation
process with respect to the CAMH, which involves at least a $160 million operation. He
analyzes funding and budget requests and brings forward his analysis of budget requests to
senior management. He analyzes one time and surplus requests for community health programs
on Toronto. At the request of senior management, he will produce financial requests tables to
support their decisions. Mr. Globerman is not directly responsible for the allocation of funds.
However, senior management relies on his analysis and recommendations regarding the
allocation of funds within the mental health program in the Toronto Region. In performing his
functions, Mr. Globerman is required to have knowledge of health care policy. By his
attendance at staff meetings, he would be privy to discussions about Ministry policy, funding
issues and funding strategies in the Toronto Region, and within the Ministry generally. Mr.
Globerman’s duties do not involve him in simply “crunching numbers”, as argued by counsel for
the Association. His responsibilities involve funding issues and the proper use of financial
resources as dictated by Ministry policy for the mental health program in the Toronto Region.
The Foundation is a relatively small charity whose general goal is to improve the medical
treatment and care received by the elderly. Although a relatively small charity, Mr. Globerman
has been able to obtain the support and participation in the Foundation of persons with a high
public profile. Partly for this reason and because the focus of the Foundation is on health care,
Mr. Globerman and the Foundation have been able to achieve a relatively high public profile
through coverage in the media.
35
Mr. Globerman’s role with the Foundation is quite different from that of a volunteer. He
created the Foundation. He is the President and primary spokesperson for the Foundation. He
initiates all of the activities of the Foundation, including fund raising. As the evidence amply
demonstrates, the Foundation would not likely exist but for the involvement of Mr. Globerman.
And there is also no doubt that through the Foundation he is a passionate advocate for the
elderly. He is very strongly committed to achieving the goals of the Foundation.
The goals of the Foundation are quite broad. One of its objectives is to assist in the
provision of patient representatives to help the elderly in dealing with issues that might arise in
an institutional setting. Other goals are more policy orientated. One of the goals is to effect
change at the system level by means that include participating in the development of public
policy and collaborating with service providers and regulatory bodies about issues that deal with
the treatment and care of the elderly.
At the launch of the Foundation in October of 1999, Mr. Globerman identified
himself as a financial consultant with the Ministry. As noted previously, he indicated that, “He
has worked on a number of health care issues in the Ministry’s mental health, substance abuse
and corporate policy areas…” Subsequent newspaper articles referred to his public service
position, thereby also linking that role with his position with the Foundation. Although he
subsequently undertook to stop referring to his position as a public servant with the Ministry
when engaging in Foundation activities, it is almost impossible to eliminate the association once
it has been made, particularly within the community in which the Ministry and the Foundation
operate.
36
After reviewing Mr. Globerman’s role as a public servant and his activities with the
Foundation, it is my conclusion there was at least a perceived and potential conflict of interest
between these two roles. At a very basic level, Mr. Globerman was working as a financial
consultant with a Ministry that funds, administers and to a degree regulates the health care
system in the Province of Ontario. Although their may be some commonality in the general
goals of the Ministry and the Foundation, the central message of the Foundation is that the health
care system is not meeting the needs of the elderly. One of the goals of the Foundation is to
address the health care needs of the elderly at the system level. Mr. Globerman was quoted as
saying in an Ottawa Citizen article on November 23, 1999, that there would not be a need for the
Foundation if the health care system was working the way it should. Through the Foundation,
Mr. Globerman is a passionate advocate for the elderly. A reasonable person could only view
this situation as creating at least a perceived or potential conflict of interest.
I agree with Mr. Springman’s assessment that it is inevitable that a conflict will
arise over the implementation of specific policies. Indeed, there is evidence in this proceeding
that illustrates that the Foundation has taken issue publicly with some of the Ministry’s policies
that affect the elderly. One need only examine the submission the Foundation made to the
Standing Committee on February 13, 2001, many months after the Deputy’s directive, to see
examples of where the Foundation has disagreed with the Ministry. As preciously noted, Mr.
Globerman wrote the submission that was presented to the Standing Committee by Ms. Hawtin.
There is a clear indication in the submission that the Foundation believes that the standards of
health care are being adjusted to what the Ministry is willing to finance as opposed to adjusting
finances to meet the standards. Reference is made of some specific problems, namely the cut
back of approximately ten thousand nursing positions, the number of elderly people who are
experiencing the schedule of night time dialysis and the many patients who have to travel to the
37
United States for cancer treatment. Reference is made in the submission to not having enough
safeguards built into the system and to the lack of regulation for health care providers.
Reference is made also to the fact that the ultimate responsibility for guaranteeing access to the
highest quality care has to lie with Government, which is where the buck stops. These examples
serve to demonstrate that becoming an advocate for better health care will inevitably lead to a
conflict with the Ministry. After examining the Foundation’s perspective on the issues referred
to in the submission to the Standing Committee, a reasonable person would have little difficulty
in recognizing that there is at least a perceived conflict of interest, and perhaps even an actual
conflict, between Mr. Globerman’s activities with the Foundation and his role as a public
servant. It is not particularly surprising that a reporter would think it ironic that Mr. Globerman
works as a financial consultant with the Ministry, given the goals and activities of the
Foundation.
Although there is no indication that Mr. Globerman’s views on how the health care
system treats the elderly has an impact on how he performs his duties as a senior financial
consultant, a reasonable perception is that the recommendations he makes to senior management
in the Ministry might be influenced by his private advocacy role with the Foundation. The fact
that he would hold particular views on the health care received by the elderly, even if there were
no Foundation, misses the point because he does engage in private activities through a
Foundation that operates openly.
The identification of Mr. Globerman as a public servant with the Ministry creates a
reasonable prospect that people would believe that the Foundation has an advantage over other
charities because he has access to information and individuals which others outside of
Government do not. Whatever his reason for identifying himself as public servant with the
38
Ministry, a reasonable perception is that the Foundation, his private interest, benefits from such a
connection.
Counsel for the Association submitted that Mr. Springman’s opinion and the Deputy’s
directive are suspect because neither refers to Mr. Globerman’s Charter rights and the balancing
exercise that is necessary for a section 1 analysis, as mandated by the Courts. Although not
mentioned explicitly, it is clear that the Ministry was engaged in balancing the appropriate
interests and rights when they considered various options to determine whether the conflict could
be eliminated or managed. After considering various options presented on behalf of Mr.
Globerman, and other options as well, the Ministry concluded that the solutions proposed did not
eliminate the conflict of interest and that the only recourse it had in the circumstances was to
direct Mr. Globerman to comply with the Deputy’s directive. Given Mr. Globerman’s passionate
advocacy for the elderly and the fact that he is the heart and soul of the Foundation, the Ministry
determined that the proposed options did not adequately address the perceived and potential
conflict of interest. In my view, the Ministry properly concluded that the goals and the activities
of the Foundation remained unchanged in any of the proposals and that Mr. Globerman would
continue to have a central role in the Foundation.
Given that Mr. Globerman’s involvement with the Foundation placed him in at least a
perceived or potential conflict of interest, the Ministry was obliged and entitled under the
Conflict of Interest Directive to take steps to protect the impartiality and integrity of the public
service. The directive of the Deputy Minister does infringe on Mr. Globerman’s rights to
freedom of expression and association. However, in balancing the Ministry’s and the public’s
right to an impartial and effective public service with Mr. Globerman’s Charter rights, I am
satisfied, taking into account the three aspects of the proportionality requirement, in particular
39
the test of minimal impairment, that the Ministry has established that the Deputy’s direction to
Mr. Globerman constitutes a reasonable limit to his Charter rights in the circumstances. Under
any of the proposed options, Mr. Globerman would continue to have a central role in the
Foundation, giving rise to at least a perceived or potential conflict of interest. There are some
outside activities in which public servants cannot engage and, given his position with the
Ministry, Mr. Globerman’s involvement with the Foundation falls into this category.
Accordingly, Mr. Globerman’s grievance dated May 1, 2001 is hereby dismissed. As will
become evident later, I note that the resolution of the conflict of interest issue is not
determinative of whether the Ministry had just cause to discharge Mr. Globerman.
The Reprimand
Ms. Weber was concerned when she reviewed the article “Live or Let Die” in the
September of 2001 edition of Homemakers magazine because it appeared that Mr. Globerman
continued to be active with the Foundation. She wrote him asking a number a questions relating
to his involvement with the article. In his written response, Mr. Globerman advised her that he
gave the interview in early 2000, before he received any direction from the Ministry, and that he
did not know when the article would be published. He confirmed that he did not attempt to
dissociate himself from the article. Mr. Globerman confirmed this response during his
testimony. He testified that he was unaware of the article until Ms. Weber brought it to his
attention.
Mr. A. Outar issued the letter of reprimand dated October 24, 2001. The text of the letter
reads as follows:
40
RE: Letter of Reprimand - Insubordination
Further to our telephone discussion this letter is to outline my concern regarding
your decision to not follow through on the conditions outlined to you in the letter of April
23, 2001, from the Regional Director of Toronto Region in relation to your activities with
The Running to Daylight Foundation.
As indicated in previous letters concerning your activities with The Running to Daylight
Foundation, you were directed to refrain from any public advocacy on behalf of the
Foundation and/or its goals or policies; to refrain from any public speaking about the
Foundation and/or its goals or policies or about the health care system and to refrain from
any contact with the media concerning the Foundation and/or its goals and objectives.
As you have admitted many times during our discussion and have indicated in your
response of September 12, 2001, you did not make any attempt to disassociate yourself or
your connection to your Foundation from the article in the September issue of
Homemakers magazine titled Live or Let Die. You have not removed yourself from the
conflict of interest as directed by the Deputy Minister in his correspondence dated June
28, 2000 and agreed to by you in the letter from Kate Stephenson dated May 30, 2001.
This is a letter of reprimand which will be placed in your corporate file. Your actions
constitute blatant insubordination to the directive you have received from both
management and the Deputy Minister. Further actions on your part that perpetuate this
conflict of interest will result in further disciplinary action, up to and including dismissal.
Although there is some indication that the Ministry attempted to determine whether Mr.
Globerman’s responses to Ms. Weber’s questions were truthful, there was no evidence called to
contradict Mr. Globerman’s testimony about his involvement with the article in question. He
was interviewed for the article by telephone many months before he disclosed the potential
conflict of interest and before the Deputy Minister gave his directive in June of 2001. Mr.
Globerman did not know when or if the article would appear in the magazine. Given the number
of interviews he gave subsequent to the launch of the Foundation, there was no reason why this
particular interview would stand out in his mind. The April 23, 2001 letter from Ms. Weber that
is referred to in the reprimand letter sets out conditions for Mr. Globerman, but it is implicit that
these conditions only applied until May 31, 2001, when Mr. Globerman was to cease any active
involvement with the Foundation. In any event, at no time did the Ministry specifically direct
Mr. Globerman to dissociate himself from any of his earlier contacts with the media. Although
41
the Ministry had become somewhat frustrated with Mr. Globerman and concerned about his
credibility, characterizing his conduct in this instance as “blatant insubordination” is rather
extreme. In my view, it is difficult to attach any fault to Mr. Globerman for the article in
question. It is my conclusion that the Ministry did not have just cause to issue him a reprimand
in these circumstances.
The Discharge
The discharge letter dated December 8, 2003, which I previously reproduced, refers to a
number of matters, some of which I will note again. It refers to the Deputy’s directive and to the
fact that Mr. Globerman had advised the Ministry that he had resigned as President of the
Foundation and had ceased any active involvement with the Foundation. It notes that Mr.
Globerman did not cease his activities with the Foundation. It refers to the Foundation’s and Mr.
Globerman’s participation in the Forum, his relationship with the Ontario Coalition of Senior
Citizens Organizations and the interview Mr. Globerman gave for the article which subsequently
appeared in the Toronto Star. It refers to Mr. Globerman’s failure to disclose his activities with
the Foundation to Ms. Esteves or to the relevant Deputy Minister. It refers to the Ministry’s
conclusion that Mr. Globerman’s conduct constitutes insubordination. It also refers to the
Ministry’s conclusion that Mr. Globerman breached his duty of trust, among other things, and
has undermined the employment relationship to the point where his continued employment was
no longer possible.
From the time when Ms. Weber raised the conflict of interest issue with Mr. Globerman
and advised him of his duty to disclose, Mr. Globerman has never believed that his activities
with the Foundation created a conflict with his position as a public servant. Although not a
position advanced by the Association in this proceeding, Mr. Globerman believes the Ministry
42
was acting in bad faith on the conflict of interest issue. Indeed, he came to believe the Ministry
and the Government were engaged in a political conspiracy to interfere with and stop the work of
the Foundation. Presumably, Mr. Springman, the Deputy Minister, Ms. Weber and Mr. Outar
would have had to participate in this conspiracy. However, there is simply no evidence to
indicate that the Ministry was acting in bad faith when it determined that Mr. Globerman was in
a conflict of interest or that there was a political conspiracy to frustrate the work of the
Foundation.
Given the Deputy Minister’s directive and the Ministry’s conclusion that the conflict
could not be managed, Mr. Globerman had a choice to make. He had to choose between
continued participation with the Foundation or his career as a public servant. It would have been
quite clear to Mr. Globerman that he likely would have been disciplined and perhaps eventually
discharged if he did not give up his Foundation activities. In May of 2001, Mr. Globerman,
through counsel, advised the Ministry that he resigned as President of the Foundation, that his
brother was the new President and that he had ceased any active involvement in the Foundation.
In so advising the Ministry, Mr. Globerman was following the well known arbitral dictum of
obey now and grieve later. It is likely that he received advice from his lawyer and the
Association when he elected to take this course of action. He grieved the directive of the Deputy
Minister and he led the Ministry to believe that he was no longer active with the Foundation and
that this would continue until a determination was made on his grievance.
Although his Foundation activities may have may have been reduced to some degree
during of his medical leave, the evidence indicates that Mr. Globerman did not cease his
activities with the Foundation. He had advised Ms. Weber that he needed until May 31, 2001 to
make arrangements for others to take over his Foundation duties. There is no evidence to
43
indicate that Mr. Globerman’s brother took over as President of the Foundation or that any other
arrangements were made for the Foundation to continue functioning without Mr. Globerman.
While off on medical leave, Mr. Globerman continued to counsel individuals who sought advice
about elderly relatives in hospitals or long term care facilities. In early 2003, Mr. Globerman
began planning for the Forum that was to take place in September of 2003 and he continued
working on the Forum while employed as a Policy Advisor with the OSS. Mr. Globerman spoke
at the Forum on behalf of the Foundation and he dealt with the media as President of the
Foundation. An interview he gave led to an article in the Toronto Star.
Ms. Esteves knew Mr. Globerman as a colleague from her time at the Ministry and she
was interested in exploring the possibility of a temporary assignment. Before her meeting with
Mr. Globerman, Mr. Outar told her about the conflict of interest issue and the directive from the
Deputy Minister. She also discussed this matter with Ms. J. Myers, an E. R. Consultant with the
Ministry. Ms. Esteves was concerned about the conflict of interest issue and she wanted to
ensure that Mr. Globerman was not in a conflict situation and that he was complying with the
directive from the Deputy. After discussing such matters as the role of the OSS, the duties of a
policy advisor and Mr. Globerman’s skills at the meeting on May 29, 2003, Ms. Esteves testified
that she raised the conflict of interest issue with Mr. Globerman. She testified that she told him
that she was aware of the Deputy’s directive and that he would have to disclose any involvement
with the Foundation. She also stated that she asked him about the status of the Foundation and
whether he was still involved with it. She testified that Mr. Globerman said he understood her
concern but that he was not doing anything with the Foundation, that the Foundation was
inactive and that the Foundation was not going to be an issue.
44
Mr. Globerman’s version of what was discussed about the conflict of interest issue and
the Foundation at the meeting is quite different. He testified that he raised the conflict of interest
issue to explain what he had been through and how poorly he had been treated by the Ministry.
He indicated that he told her that there was no conflict of interest and that the entire matter was
politically motivated. He claims that the only thing discussed about the Foundation was that he
was precluded from having any involvement with the Foundation when there was no conflict of
interest. Mr. Globerman specifically denied that he was asked by Ms. Esteves about his current
role with the Foundation and whether the Foundation was active. When asked during his
evidence in chief about why he did not tell Ms. Esteves that he was actively involved with the
Foundation and still President, he replied that he was never asked by her about this and because
Mr. Outar had confirmed to him during their discussion on March 25, 2002, that the concern
about his Foundation activities had nothing to do with a conflict of interest.
In submitting that I should accept Mr. Globerman’s version of his discussion with Ms.
Esteves, counsel for the Association submitted that it is highly improbable that Mr. Globerman
would indicate that the Foundation was inactive when he would expect that his involvement with
the Forum would eventually come to the attention of Ms. Esteves and Ministry officials. I agree
that it is somewhat surprising that Mr. Globerman would say that the Foundation was inactive in
these circumstances and will comment further about this later. However, I have no hesitation in
accepting Ms. Esteves’s version of the discussion that occurred on May 29, 2003. There is no
reason for Ms. Esteves to mislead me about what Mr. Globerman said to her at that time. She
was aware of the conflict of interest issue before her meeting with Mr. Globerman and she knew
about the directive of the Deputy Minister. In order to avoid any conflict of interest issues for
the OSS, it is not surprising that she would ask Mr. Globerman about his status with the
Foundation. It is very probable that Mr. Globerman would not have been offered the temporary
45
assignment if he told her that he was still active with the Foundation, contrary to the Deputy’s
directive and his undertaking. I believe Ms. Esteves when she stated that she told Mr.
Globerman that he would have to disclose any conflict of interest and that Mr. Globerman told
her that the Foundation was not active and that the Foundation would not be a problem.
Ms. Esteves saw a flyer referring to the Forum late in the day on Friday, September 19,
2003. The flyer noted the subject of the Forum and indicated that it was co-sponsored by the
Foundation and the Ontario Coalition of Senior Citizens Organizations, a major stakeholder of
the OSS. She testified that at that moment “her heart sank” and she was “shocked and
disappointed”. She immediately confronted Mr. Globerman and asked why he did not tell her he
was organizing the Forum and pointed out that he had told her the Foundation was inactive. Mr.
Globerman told her that he was fed up, that there was no conflict of interest and that he had a
right to be involved with the Forum on his own time. I accept Ms. Esteves’s testimony that she
did not realize at the time that Mr. Globerman would be speaking at the Forum. She advised Mr.
Globerman that she would be consulting with the Assistant Deputy Minister. Ms. Esteves did
not specifically direct Mr. Globerman not to attend the Forum. Contrary to the submission from
counsel for the Association, it is my view that her failure to so direct him is not significant in the
circumstances. In my view, it would have been clear to Mr. Globerman that Ms. Esteves did not
want him to participate in the Forum and that his doing so was contrary to the Deputy’s directive
and his undertaking.
Ms. Esteves briefed the Assistant Deputy Minister and told the Human Resources
Branch about the situation. She asked one of her staff to attend the Forum and this person
advised her that Mr. Globerman was a speaker at the Forum. The Toronto Star article about the
Forum and the Foundation came to her attention on September 26, 2003. She again met with Mr.
46
Globerman and asked him why he did not tell her that he would speak at the Forum and why he
did not tell her about what was still to come. He told her that while at the Forum he did not
indicate that he was an employee of the OSS and that he was not critical of the Government. Ms.
Esteves testified that many of the individuals who attended the Forum knew that Mr. Globerman
worked for the OSS and that she believed that he had been critical of the Government. Ms.
Esteves felt betrayed by Mr. Globerman.
Ms. Esteves recommended that the temporary assignment with the OSS be terminated
because Mr. Globerman had not been truthful with her and she believed that his credibility with
stakeholders of the OSS had been permanently damaged. In a letter to Ms. Weber and Mr. Outar
dated October 6, 2003, she summarized her position on this issue as follows:
The Ontario Coalition of Senior Citizens Organizations (OCSCO) is a key stakeholder of
the Ontario Seniors’ Secretariat. The OCSCO is one of eight members of the Ontario
Seniors’ Secretariat Liaison Committee that meets on a regular basis with the Ontario
Seniors’ Secretariat. As a result of Mr. Globerman’s actions, I can no longer trust that
Mr. Globerman is able to exercise the judgment required of the Policy Advisor position.
The Policy advisor position requires frequent interface with external stakeholders for the
purpose of participating on working groups and committees and recommending policy
positions as well as consulting with external stakeholders in an appropriate manner
through an understanding of political sensitivities across Ministries and sectors.
The investigation meeting that took place on November 7, 2003, lasted at least 1
½ hours. The parties discussed events that occurred since the Deputy’s directive up to the Forum
and the Toronto Star article. Among other things, Mr. Globerman indicated that he started
working with the Ontario Coalition of Senior Citizen Organizations during the summer of 2003.
He also indicated that he had a legal right to operate the Foundation, that the Deputy’s direction
was a violation of his human rights, that there was no conflict of interest and that he was under
duress when he resigned from the Foundation. He stated that he did not disclose that the
Foundation was active to Ms. Estaves because he did not want any hassle. Mr. Globerman did
47
not mention at this meeting the comments he attributed to Mr. Outar during their March 25, 2002
discussion as a justification for his conduct.
Mr. Globerman was asked by his counsel why he organized and participated in the Forum
in light of the Deputy’s directive and his previous involvement with the conflict of interest issue.
He responded that there were two reasons. One was that he had been contacted by many people
from across Canada who described horror stories about the treatment of the elderly in the health
care system and that it was important to provide people with an opportunity to share their
experiences. The other reason was that he had come to realize that the “charges against him
were trumped up” and “were bogus”. To support this view he relied on the conduct of the
Ministry, particularly its unwillingness to negotiate reasonably the conflict of interest issue. He
also indicated again that his views were confirmed by Mr. Outar during their discussion on
March 25, 2002. In essence, Mr. Globerman relied on his belief that the conflict of interest issue
was contrived and politically motivated as justification for his continued involvement with the
Foundation.
It is my conclusion after reviewing the evidence and considering the submissions
that the allegations against Mr. Globerman in the Employer’s discharge letter of December 8,
2003, are well founded. In the face of the Deputy’s directive and warnings from the Ministry
that a failure to comply with this directive could result in discipline, Mr. Mr. Globerman did not
remain inactive in the Foundation. His activities in connection with the Forum amply
demonstrate that he was very active in the Foundation and, as far as the Ministry and the OSS
were concerned, secretly so. By engaging in these Foundation activities, Mr. Globerman failed
to comply with the representation he made to the Ministry to the effect that he would not be
active in the Foundation until his grievance was resolved. By failing to comply with the Deputy
48
Minister’s directive dated June 28, 2000, and the subsequent direction from the Ministry, Mr.
Globerman was insubordinate.
Counsel for the Association argued that Mr. Globerman could not be disciplined for
insubordination because Mr. Globerman was not obliged to obey now and grieve later in these
circumstances. In support of this submission, counsel referred to the following decisions: Re
British Columbia Telephone Co. and Telecommunications Workers Union (1997), 15 L.A.C.
(2nd) 426 (Larson); Re Auto Haulaway Ltd. and Teamsters Union, Local 938 (1994), L.A.C. (4th)
76 (Rayner); Re Sudbury Broadcasting Co. Ltd. and National Association of Broadcast
Employees & Technicians (1972), L.A.C. 130 (O’Shea); and, Re Wilson Erectors ltd. and
International Union of Operating Engineers, Local 793 (1972), L.A.C. 418 (O’Shea). These
cases deal with exceptions to the general rule that an employee must comply with a management
directive and then grieve.
Given the determination that the Ministry was within its rights to direct Mr. Globerman
to make a choice between the Foundation and his position as a public servant, the submission
becomes academic. However, even if the Ministry did not have the right to make such a
direction to Mr. Globerman, it is not clear that the general rule of obey now and grieve later
would not apply. In any event, the submission is not relevant to these circumstances because Mr.
Globerman followed the rule and led the Ministry to believe that, in effect, he would not engage
in Foundation activities until the conflict of interest dispute was resolved. Having undertaken to
comply with the Deputy’s directive, Mr. Globerman cannot now claim that he was under no
obligation to remain inactive in the Foundation until his grievance was resolved.
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Mr. Globerman did not disclose his activities with the Foundation to Ms. Esteves or to
the Deputy Minister of the Ministry of Citizenship. As previously noted, it is my conclusion that
Ms. Esteves had advised him about his obligation in this regard during their meeting on May 29,
2003. Even if she had not done so, Mr. Globerman was now well aware of his obligation to
disclose under the Conflict of Interest Directive when he engaged in outside activities that could
be a conflict of interest. There is no doubt that Mr. Globerman, as a policy advisor with the
OSS, was obliged to disclose his activities with the Forum, including his association with the
Ontario Coalition of Senior Citizens Organizations, a major stakeholder for the OSS. In my
view, he did not disclose this information about a significant public event because he recognized
that the OSS would consider his outside activities to be inappropriate. The failure to disclose
pursuant to the Conflict of Interest Directive is itself a basis for the imposition of discipline.
In addition to failing to comply with his undertaking, his insubordination in the face of
the Deputy’s directive and his failure to disclose his activities in connection with the Forum, Mr.
Globerman did not tell Ms. Esteves the truth when told her the Foundation was inactive. It is
trite to point out that an employee is obliged to tell the employer the truth at all times, but
particularly in circumstances involving important issues. The failure to tell the truth can have a
significant effect on the viability of an employment relationship. It is not surprising that Ms.
Estaves felt betrayed by Mr. Globerman and decided to terminate the temporary assignment.
Mr. Globerman’s actions and lack of action referred to above constitute serious
misconduct. It is my conclusion that the Employer has established that it had just cause to
discharge Mr. Globerman for this misconduct.
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Counsel for the Association made a number of forceful submissions to the effect that the
penalty of discharge should be substituted with a lesser penalty. Among other things, he referred
to Mr. Globerman’s age, the absence of a disciplinary record, his years of service and the fact
that all of his misconduct was focused on his involvement with the Foundation. After
considering all of the factors relevant to this issue, it is my conclusion that the substitution of a
lesser penalty would not be appropriate in the instant case.
In addition to the seriousness of his misconduct, Mr. Globerman does not acknowledge
his misconduct, nor does he demonstrate any remorse for his behaviour. Without any valid
proof, he is prepared to make the serious allegation that the Government of the day was engaged
in a political conspiracy against him and the Foundation because it did not want the issue of sub-
standard elder care to be publicized.
What is particularly noteworthy is his lack of honesty. Mr. Globerman was dishonest
with the Ministry and with Ms. Esteves. He undertook, in effect, to refrain from Foundation
activities, but elected to continue with those activities without advising the Ministry or the OSS
that he was doing so. He advised Ms Esteves during their May 29, 2003 meeting that the
Foundation was inactive and that he was not doing anything with the Foundation when he was
engaged in planning the Forum, a significant public event. He attributed comments to Mr. Outar
which he then relied on to justify continuing his activities with the Foundation and for not
disclosing these activities. As I noted earlier, I found his testimony about what Mr. Outar
allegedly said to him about the conflict of interest issue during their March 25, 2002 meeting to
be a complete fabrication. Mr. Outar did not confirm to him, explicitly or implicitly, that the real
dispute between them was based on the Foundation’s focus on the medical system’s sub-standard
care of the elderly, and not on a conflict of interest. It is one thing to suggest that the Ministry
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was not acting in good faith. It is quite another to suggest falsely that someone in Mr. Outar’s
position confirmed to him that the Ministry was not acting in good faith. Not only was Mr.
Globerman dishonest with his Employer, but he did not testify truthfully about some aspects of
these matters. In my view, the nature of his misconduct and the dishonesty with his Employer
has resulted in a situation where the Employer can no longer trust Mr. Globerman, thereby
causing irreparable harm to this employment relationship. Reinstatement is not a viable and
realistic option in these circumstances.
Mr. Globerman’s explanation that he did not want to disclose his Foundation activities in
order to avoid “a hassle” is in no way a satisfactory or complete explanation for his conduct. As
noted previously, he must have known that his Foundation activities and his false representation
to Ms. Esteves would be discovered eventually. In my view, it is reasonable to conclude that Mr.
Globerman chose to continue his Foundation activities without advising the OSS or the Ministry
with the knowledge that by doing so he was placing his employment at risk.
It is apparent that Mr. Globerman was affected deeply by his perception of the
circumstances of his father’s death. He testified at some length about what he and the
Foundation have accomplished and he expressed the view that the Foundation’s activities have
benefited the elderly, even to the point of saving lives. No one, including the Ministry, has
questioned the value of the Foundation and its objectives. His efforts to improve the treatment
and care of the elderly and to address ageism in the healthcare system are commendable. It is
unfortunate that this outside activity gave rise to a perceived and potential conflict with his job as
a senior financial consultant with the Ministry. It is also unfortunate that he engaged in conduct
which caused irreparable damage to the employment relationship.
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For the forgoing reasons, it is my conclusion that the Ministry has established just cause
for the discharge of Mr. Globerman. Accordingly, the discharge grievance dated December 18,
2003, is hereby dismissed.
Dated at Toronto, this 2nd day of August, 2006.
Ken Petryshen – Vice-Chair