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HomeMy WebLinkAbout2004-4000.Edwards.06-05-30 Decision Crown Employees Commission de Nj Grievance Settlement reglement des griefs Board des employes de la Couronne ~ Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2004-4000 2005-0251 UNION# 2005-0302-0003 2005-0302-0002 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Edwards) Union - and - The Crown In RIght of Ontano (Mimstry of Health and Long-Term Care) Employer BEFORE RandI H. Abramsky Vice-Chair FOR THE UNION DavId Wnght Ryder Wnght Blair & Holmes LLP Barnsters and SOlICItorS FOR THE EMPLOYER Fateh SalIm Counsel Mimstry of Government ServIces HEARING October 24 November 16 December 19 2005 March 27 & 28 Apnl 24 & Apnl 25 May 1 2006 2 DeCISIon In 1996 Vice-Chair FInley determIned that the gnevor Sandra Edwards, was In a conflIct of Interest sItuatIOn In regard to her posItIOn as a commumcatIOns officer at the Oshawa Central Ambulance CommumcatIOns Centre (C AC C) and her husband's busIness whIch Involved the transportatIOn of stable non-emergency patIents At Issue In thIS proceedIng IS whether that conclusIOn IS stIll valId, In lIght of the Mimstry's dIvestment of land ambulance servIces to mumcIpalItIes In 2000 Facts A. The Finley Decision On January 9 1996 Vice Chair FInley determIned that "a conflIct of Interest does eXIst for the Gnevor In her commumcatIOns officer posItIOn at the Oshawa C.AC C wIth respect to that aspect of Emergency MedIcal Consultants, whIch Involves the transportatIOn of 'stable and non- emergency patIents'" Emergency MedIcal Consultants, whIch was part-owned and operated by the gnevor's husband, Don Edwards, provIded both specIal events emergency medIcal ambulance coverage as well as transportatIOn of stable non-emergency patIents ThIS Involves transportIng stable patIents from home to a hospItal or nursIng home or long term care facIlIty or VIce-versa as well as transportIng patIents to and from medIcal or dIagnostIc appoIntments In her decIsIOn, Vice-Chair FInley recIted a number of facts whIch had been agreed upon by the partIes These Included the folloWIng, among others, at pp 9-12 1 The Gnevor IS a CommumcatIOns Officer In the Oshawa Central Ambulance CommumcatIOns Centre (OCACC) She commenced employment there on Apnl 6 1988 as a Go-Temp moved to the UnclassIfied ServIce In January 1989 and to the ClassIfied ServIce In December 1989 To date the Gnevor has no dIscIplInary record. 3 The capabIlIty and competency of the Gnevor to fulfill the dutIes of the posItIOn are not In questIOn. 2 The posItIOn Involves reCeIVIng, aSseSSIng and respondIng to requests for both emergency and non-emergency patIent transfers The CommumcatIOns Officer IS responsIble for the dIspatchIng of only Mimstry of Health authonzed ambulance servIces and It does not Involve any contact wIth non-authonzed transfer servIces 3 Non-emergency patIent transfers Include transfers to and from hospItal facIlItIes and nurSIng homes or other facIlItIes both before and after treatment. WhIle these transfers are undertaken by Mimstry of Health authonzed ambulance servIces, these transfer[s] are undertaken only on a non-pnonty basIs Consequently there can be delays or cancellatIOns when authonzed ambulance servIces are not ImmedIately avaIlable due to other pnontIes Where the non-emergency patIent transfers are undertaken by ambulance servIces, they would be scheduled and dIspatched through the OCACC by one of ItS CommumcatIOns Officers 4 In response to a growth In non-emergency transfers dunng a penod of restraInt, transportatIOn servIces other than ambulances have commenced offenng non-emergency patIent transfer servIces Where a non-emergency patIent transfer IS undertaken by a non-ambulance servIce, the transfer would be scheduled and arranged through the hospItal or facIlIty or dIrectly wIth the patIent. Such a transfer would not Involve the OCACC or any of ItS CommumcatIOns Officers To date, these servIces have not been used by hospItals, facIlItIes or patIents In the area served by the OCACC 21 The Employer agrees that to date there IS no eVIdence that the Gnevor has provIded any InformatIOn receIved In the course of her dutIes to assIst her husband's busIness 22 The Employer agrees that to date the Gnevor's husband's busIness has not denved any benefit from the Mimstry of Health In respect of non-emergency medIcal transfers In the decIsIOn, the Board noted at p 26 that "[t]he Ambulance Act restncts the response to emergency calls and the transportatIOn of IndIVIduals Involved In such emergencIes to Mimstry of Health ambulance servIces No such restnctIOn eXIsts on the transportatIOn of stable patIents from home to hospItal or from hospItal to home" ApplYIng the case law to the facts, Vice-Chair FInley made a number of findIngs and conclusIons She determIned that Emergency MedIcal Consultants could "only be said to be 'In competItIOn' WIth the Ambulance/DIspatch ServIces In the transportatIOn of stable, non- emergency patIents" She determIned that Ms Edward's employment at the Oshawa CACC 4 "gIves her access to certaIn InformatIOn [such as call volume and Inter-facIlIty transfer InfOrmatIOn] regardIng the operatIOns of Oshawa C AC C" whIch, "[b]eIng the spouse of the owner of Emergency MedIcal Consultants also places her In a sItuatIOn where thIS InfOrmatIOn could easIly be conveyed, If she were so InclIned." Although there was no eVIdence or even suggestIOn that the gnevor had shared such InformatIOn wIth her spouse the Board ruled that "that does not solves the problem of perceptIOn In a conflIct of Interest sItuatIOn." The Board further concluded that the gnevor's assIstIng her husband "could" Interfere wIth her dutIes as a publIc servant, Influence or affect the carryIng out of such dutIes, or gIve her an advantage or benefit, pecumary or otherwIse denved from your employment as a publIc servant. " Vice-Chair Finley concluded that "these outcomes need only be a possIbIlIty for a potentIal conflIct of Interest to anse" She determIned that there was an actual conflIct, the potentIal for a conflIct and the perceptIOn of a conflIct, both by the publIc and competItors B. Post Finley Decision Events Dunng the pendency of the gnevance before Vice-Chair FInley Ms Edwards had been transferred to a temporary posItIOn WIthIn the Mimstry Upon receIpt of the decIsIOn, the Mimstry offered Ms Edwards two chOIces (1) reInstatement to her posItIOn at the Oshawa CACC provIded that "we receIve an undertakIng acceptable to the Mimstry IndIcatIng that the conflIct of Interest no longer eXIsts" or (2) a lateral transfer as a commumcatIOns officer at another CACC outsIde the area of operatIOn ofEMC On February 26 1996 an OPSEU Gnevance Officer forwarded to the Mimstry "a sIgned undertakIng from Mr Edwards" That undertakIng, dated February 23 1996 was sIgned by Don Edwards, ChIef ExecutIve Officer of MedStat Emergency MedIcal ServIces MedStat IS the 5 successor of EMC In It, Mr Edwards agreed to the folloWIng, upon "wntten assurance that Ms Edwards has been reInstated to her former posItIOn" 1 MedStat Emergency MedIcal ServIces wIll suspend the delIvery of non-emergency transfer servIces In the Oshawa CACC catchment area, and 2 provIde wntten notIce to the Mimstry If I resume thIS aspect of my busIness Upon receIpt of thIS letter Ms Edwards was returned to her posItIOn as a CommumcatIOns Officer at the Oshawa CACC The Mimstry relIed upon thIS undertakIng from Mr Edwards to resolve the conflIct of Interest Issue, and all of the relevant partIes - the Mimstry OPSEU and the gnevor were aware of thIS resolutIOn. C. The Ministry's Divestment of Ambulance Services In 1996 at the tIme of the FInley decIsIOn, the Mimstry of Health dIrectly provIded and fully funded land ambulance servIces eIther through provIncIal ambulance servIces, pnvate ambulance servIces (mostly Crown CorporatIOns) or hospItal-based ambulance provIders The Ambulance Act restncted the response to emergency calls and the transportatIOn of IndIVIduals Involved In such emergencIes to these authonzed Mimstry of Health ambulance provIders In other words, only a Mimstry authonzed ambulance servIce provIder could be dIspatched to an emergency call No such restnctIOn eXIsted on the transportatIOn of stable non-emergency patIents, and on occaSIOn, pnvate compames undertook such transfers Authonzed ambulance servIce provIders also performed stable non-emergency patIent transfers, on a non-pnonty basIs In 1996 the Mimstry of Health provIded dIspatch servIces for all authonzed ambulance servIces, IncludIng both emergency and non-emergency transportatIOn, through the vanous CACCs located throughout the proVInce Emergency (911) calls would be forwarded by the polIce to the appropnate CACC for the nearest ambulance to be dIspatched. Non-emergency 6 patIent transfer calls were also dIspatched by the CACC on a non-pnonty basIs In 1996 a CommumcatIOns Officer at a CACC could only dIspatch a Mimstry authonzed ambulance servIce EffectIve January 1 2000 the proVInce began to download the provIsIOn of land ambulance servIces to mumcIpalItIes As a result, the Mimstry no longer dIrectly provIdes land ambulance servIces FundIng for the servIce IS splIt between the proVInce and the mumcIpalIty One of the mumcIpalItIes that took over thIS ambulance functIOn IS the RegIOnal MumcIpalIty of Durham, whIch IS served by the Oshawa CACC The provInce also maIntaInS regulatory oversIght of emergency ambulance servIces and all emergency ambulance servIces must be certIfied by the proVInce In 2000 the dIspatch servIces provIded by the CACCs dId not change Emergency and non- emergency calls are stIll processed by the CACC Now however only certIfied ambulance servIces may be dIspatched for emergency and non-emergency calls The CACCs stIll dIspatch and dIrect these ambulances SInce 2000 there has been a sIgmficant Increase In the number of pnvate medIcal transfer compames These compames do not provIde emergency ambulance servIces They transport stable, non-emergency patIents as well as cover specIal events UnlIke the sItuatIOn In 1996 these compames now operate In the area servIced by the Oshawa CACC IncreasIngly hospItals have entered Into contracts wIth pnvate medIcal transfer compames to perform theIr non-emergency transfers As a result, SInce 2000 the number of non-emergency calls to the Oshawa CACC has decreased whIle the number of emergency calls has sIgmficantly 7 Increased. For example, there were 9 122 non-emergency (Code 1 and 2) and 27557 emergency (Code 3 and 4) calls to the Oshawa CACC In 2000 whereas there were 5077 non-emergency calls and 36,378 emergency calls In 2004 D The resumption of MedStat's business in the Oshawa Area. In eIther late 1999 or early 2000 MedStat agaIn started to perform stable patIent transfers In the Oshawa CACC catchment area. Mr Edwards dId not provIde wntten notIce to the Mimstry of the resumptIOn of thIS aspect of hIS busIness as reqUIred by the February 23 1996 letter Mr Edwards testIfied that he dId not do so because he receIved legal advIce that because of the Mimstry' s dIvestment of ambulance servIces, the letter was no longer effectIve He took no steps, however to confirm that conclusIOn wIth the Mimstry The gnevor testIfied that she dId not learn that her husband had resumed thIS aspect of the busIness untIl the SARS cnSIS In the Spnng of 2003 She testIfied that Mr Edward's told her that the Mimstry had contacted hIm In regard to provIdIng medIcal transportatIOn servIces In the area, whIch he found Iromc In lIght of past events She testIfied that she took no steps to advIse the Mimstry about thIS for several reasons FIrst, In her VIew the letter oblIgated her husband to notIfy the Mimstry not her Second, she felt that there was no longer a conflIct In lIght of the Mimstry's dIvestment of ambulance servIces ThIrd, she felt that the Mimstry was already aware of her husband's actIvItIes In relatIOn to MedStat SInce the Mimstry had contacted hIm E. The Ministry's Investigation and Determination In the Fall of 2004 an actIng field manager notIced a vehIcle In the employee parkIng lot of the Oshawa CACC wIth a MedStat logo and the word "supervIsor" wntten on It. The matter was referred up to Semor Manager Denms Brown. In December 2004 Mr Brown assIgned Mr 8 Bnan Clark, CoordInator of Field ServIces, to determIne whether MedStat was In vIOlatIOn of Its 1996 agreement wIth the Mimstry Mr Clark had not been Involved In the earlIer conflIct of Interest determInatIOn. He was provIded wIth a number of documents to reVIew IncludIng the Finley decIsIOn, the Mimstry's February 9 1996 letter to Ms Edwards outlImng her two optIOns, the February 23 1996 letter to the Mimstry from Mr Edwards and the cover letter whIch accompamed It from OPSEU He was also provIded wIth a pnnt out of MedStat' s web sIte He revIewed the documents and met wIth semor management. Mr Clark concluded that the 1996 agreement had been breached, SInce MedStat resumed provIdIng non-emergency transfers wIthIn the Oshawa CACC catchment area wIthout notIfYIng the Mimstry He also concluded that the Mimstry's dIvestment of the provIsIOn of land ambulances servIces to the mumcIpalItIes dId not alter the determInatIOn of Vice-Chair FInley that a conflIct of Interest eXIsted. Mr Clark was IntImately Involved In the dIvestment process He served on the "Who Does What CommIttee" and the "Transfer CommIttee" whIch was responsIble for the transItIOn of ambulance personnel from the Mimstry to the mumcIpalItIes He served on a subcommIttee dealIng wIth changes to the Ambulance Act He chaired the "CertIficatIOn CommIttee" whIch dealt wIth the Mimstry's certIficatIOn of ambulance servIces FInally he was Involved In changes to the posItIOn specIficatIOn and class standards for CommumcatIOn Officers As he testIfied at the heanng, when he revIewed the documents provIded by Mr Brown and he revIewed Ms FInley's conclusIOns to see If they were "stIll relevant" he "knew all thIS" 9 Based on Mr Clark's recommendatIOn, the Mimstry Issued a letter dated January 4 2005 to Ms Edwards The letter recItes the earlIer conflIct of Interest determInatIOn whIch led to the FInley decIsIOn, and the "wntten settlement" as set out In the February 23 1996 letter It then states It has come to our attentIOn that MedStat has been and IS currently proVIdIng non-emergency transfer servIces In the Oshawa CACC catchment area. In thIS connectIOn, and In connectIOn wIth your Involvement In MedStat, we would note the folloWIng . MedStat has a web sIte (~.M~<:lStCl.t<:lmhCl.m:.ll~t.) that advertIses that It has been servICIng Southern Ontano and In partIcular the Durham RegIOn SInce 1989 . MedStat also advertIses Itself as a transfer leader In alternate patIent transport for stable non-cntIcal patIents . You have attached your personal resume to MedStat's web sIte and, on one or more occaSIOns, you have dnven a MedStat vehIcle, wIth MedStat' s logo to work at the Oshawa CACC SInce the Durham RegIOn, In whIch MedStat has been provIdIng non-emergency transfer servIces, IS part of the Oshawa CACC catchment area and SInce Mr Edwards faIled to notIfy the Mimstry of Health and Long-Term Care that MedStat had resumed thIS aspect of ItS busIness, the 1996 settlement agreement has been breached. In lIght of thIS breach, the Mimstry has no optIOn but to enforce the decIsIOns of the Deputy Mimstry and the Gnevance Settlement Board that you must remove yourself from the conflIct of Interest sItuatIOn. AccordIngly you are dIrected to choose one of the folloWIng two alternatIves . Request a lateral transfer as a commumcatIOns officer to another Mimstry CACC outsIde the area of operatIOn of MedStat; or . SubmIt your resIgnatIOn from the publIc servIce If we have not heard from you on how you are gOIng to rectIfy thIS conflIct by January 31 2005 we wIll further reVIew our optIOns and, at a mImmum after that date, place you on a suspenSIOn wIthout pay untIl the conflIct IS removed or untIl we have determIned an appropnate course of actIOn. On February 23 2005 the gnevor filed a gnevance contestIng the Mimstry's January 5 2005 letter On the same date, OPSEU filed a Umon gnevance assertIng that the FInley decIsIOn was "no longer a valId decIsIOn gIven that the cIrcumstances/facts relIed upon In that award have changed." 10 SInce that tIme, the gnevor went off on sIck leave whIch has now been exhausted. Her current status IS a leave of absence wIthout pay It should be noted that the gnevor for many years, has been actIve In the Umon. She has played a sIgmficant role In gnevance admInIstratIOn and In negotiatIOns, as well as servIng on the Mimstry Employee RelatIOns CommIttee Positions of the Parties 1 For the Employer The Employer first argues that the gnevances should be dIsmIssed on the basIs of Issue estoppel and abuse of process It asserts that the "Issue" of whether a conflIct of Interest eXIsts between the gnevor's Job as a commumcatIOns officer and her husband's busIness had been fully and finally decIded In 1996 It contends that all of the reqUIred elements for Issue estoppel have been met - the partIes are the same, the Issue IS the same and the matter was decIded by the GSB In the Employer's submIssIOn, to allow the Umon to CIrcumvent that decIsIOn by raiSIng the same Issue agaIn, due to a change In government polIcy vIOlates the pnncIples of finalIty and undermInes labour relatIOns and the Interests of the partIes The Employer asserts that governments often change and tInker wIth theIr operatIOns but that should not permIt the Umon to relItIgate an Issue whIch has already been decIded. To allow that, It contends, would be an abuse of process In ItS vIew the Umon provIded no eVIdence that the facts upon whIch Ms FInley based her decIsIOn have changed and no eVIdence to remove the applIcabIlIty of her decIsIOn. In support the Employer cItes to City of Toronto and CUPE, Local 79 [2003] 3 S C.R77 (S C C) 11 The Employer also asserts that the matter was resolved by the partIes through a settlement agreement. It contends that the "agreement" was not Just between Mr Edwards and the Mimstry but was a bmdmg settlement whIch mvolved the Mimstry the Umon and the gnevor It argues that Mrs Edwards was fully aware and agreed to the terms of the February 23 1996letter as a resolutIOn of her gnevance It submIts that the Mimstry relIed on thIS agreement, m good faith, and that the gnevor should not be allowed to resIle from It. It further submIts that the eVIdence clearly showed that agreement was breached. MedStat resumed non-emergency patIent transfers wIthm the Oshawa CACC catchment area m 2000 and the Mimstry asserts, even earlIer In regard to thIS last pomt, It contends that an adverse mference should be drawn by Mr Edward's refusal to provIde documentatIOn from the penod pnor to 2000 cItmg OPSEU (Larman) and Ministry of Community Family and Children s Services (2003) GSB No 1617/01 (Abramsky) The eVIdence shows, the Mimstry argues, that Mr Edwards resumed thIS aspect of hIS busmess wIthout wntten notIce to the Mimstry as reqUIred. It submIts that Mrs Edwards should have notIfied the Mimstry at that pomt, but even If she dId not know about It untIl March 2003 she should have advIsed the Mimstry of the matter then but dId not. It argues that Ms Edwards had a dual oblIgatIOn to advIse the Mimstry - under the February 1996 agreement and under the conflIct of mterest gUIdelInes It contends that Ms Edwards was well aware that an employee, under the conflIct of mterest regulatIOns, has a posItIve duty to seek advIce from the Deputy Mimster regardmg a possIble conflIct of mterest, whIch she faIled to do In the Mimstry' s submIssIOn, It clearly establIshed a breach of the 1996 agreement. In the alternatIve, the Employer contends that the Board's JunsdIctIOn m thIS matter IS qUIte lImIted. In ItS VIew the Board may only determme If the Mimstry's dIvestment of dIrect 12 ambulance servIces to the mumcIpalItIes In 2000 renders the FInley decIsIOn InapplIcable In thIS regard, the Employer contends that the Umon provIded no eVIdence that anythIng changed In relatIOn to the operatIOn of the CACCs It submIts that the Mimstry dIvested ItS ambulance servIce, not ItS dIspatch functIOn, and that the role of a commumcatIOns officer has remaIned the same In ItS VIew Ms FInley's determInatIOn that a conflIct eXIsted was based on the gnevor's Job as a commumcatIOns officer - the dIspatch functIOn - whIch enabled her to know InformatIOn whIch could benefit her husband's busIness That, In ItS VIew has not changed, and the conflIct of Interest remaInS The Union The Umon asserts that It IS not attackIng the FInley decIsIOn or tryIng to relItIgate the same Issue based on the same facts It accepts the FInley decIsIOn. Rather It asserts that the Mimstry's dIvestment ofland ambulance servIces renders the conclusIOn that Vice-Chair Finley reached InapplIcable It contends that where the facts are dIfferent, an earlIer decIsIOn IS not bIndIng, CItIng OPSEU (Umon Gnevance) and Mimstry of Commumty Safety and CorrectIOnal ServIces (2005) GSB 2005/123 (Johnston) It also asserts that CIrcumstances In a conflIct of Interest sItuatIOn may change resultIng In a dIfferent outcome, CItIng OPSEU (Schoular) and Mimstry of EducatIOn (2002) GSB No 2002/37 (Gray) The Umon contends that the Mimstry's dIvestment of land ambulance servIces means that the Mimstry IS no longer In the same busIness as MedStat, lIke It was In 1996 when both the Mimstry and MedStat provIded non-emergency patIent transfers It asserts that the Mimstry IS no longer "In competItIOn" WIth MedStat. Instead, MedStat's competItors are the RegIOnal MumcIpalIty of Durham and other pnvate transfer compames The Umon asserts that, wIth 13 dIvestment, there no longer IS a conflIct of Interest between the busIness of the Mimstry and MedStat. Further the Umon submIts that In 1996 there was no pnvate stable patIent transfer busIness In Ontano whereas now It IS a vIbrant Industry ThIS, In ItS VIew has had a sIgmficant Impact on the InformatIOn whIch may be obtaIned by the gnevor In her posItIOn as a CommumcatIOns Officer No longer It submIts, IS a CommumcatIOns Officer pnvy to total call volume or Inter-facIlIty transfer InformatIOn SInce the Oshawa CACC no longer handles all of the calls The Umon notes that non-emergency calls are an IncreasIngly small percentage of the total calls to CACC Consequently It asserts that there would no longer be useful InfOrmatIOn for the gnevor to pass on to her husband. The Umon further asserts that the gnevor's abIlIty to pass on InfOrmatIOn (such as delays In transfers) whIle at work, when It mIght be useful, IS qUIte lImIted. The Umon also submIts that a reasonable person, fully Informed, would not perceIve a conflIct of Interest, nor would a competItor CItIng the testImony of Mr John DIngwell, a competItor and Ms Sandy Van Kleef, a former CommumcatIOns Officer In the Umon's VIew the Issue of the alleged breach of the 1996 agreement IS a red- hernng, as IS her faIlure to advIse the Mimstry Those Issues, It submIts are red-hernngs because the Mimstry dId not take actIOn agaInst the gnevor because of them. Instead, the Mimstry has acted on the basIs that a conflIct of Interest eXIsts It further contends that the gnevor's faIlure to advIse the Mimstry was reasonable under all of the CIrcumstances 14 FInally the Umon submIts that the Board should be careful In Its scrutInY of the Employer's decIsIOn In lIght of the gnevor's actIve Umon role and the tImIng of the decIsIOn, comIng shortly before a stnke was antIcIpated. Decision A. Jurisdiction I conclude that I do have JunsdIctIOn In thIS matter albeIt a very narrow one SpecIfically I have JunsdIctIOn to determIne whether the Mimstry's dIvestment of ambulance servIces to the mumcIpalItIes In 2000 renders the decIsIOn of Vice-Chair FInley InapplIcable In 2005 In my VIew the Umon and the gnevor are not challengIng the decIsIOn of Vice-Chair FInley per se Nor are they seekIng to relItIgate the Issue of whether a conflIct of Interested eXIsted at the tIme Rather It asserts that there was a fundamental change In the Mimstry's ambulance servIces In 2000 and that, as a result, her decIsIOn may no longer be applIed. I agree wIth the Employer that cautIOn should be exercIsed In a sItuatIOn lIke thIS Both partIes have an Interest In finalIty and the GSB has an InstItutIOnal Interest In the Integnty of ItS deCIsIOns But In thIS case, there IS a genuIne Issue raised by the Mimstry's dIvestment In regard to the contInuIng valIdIty of the FInley decIsIOn. The dIvestment was a maJor change In polIcy yet the Mimstry IS seekIng to enforce the FInley decIsIOn. Based on that decIsIOn and the alleged breach, It has demanded that the gnevor "must remove [her ]self from the conflIct of Interest sItuatIOn." She can eIther transfer to another CACC or resIgn her employment. These are senous consequences Both the Umon and the gnevor contend that, In lIght of the dIvestment, there IS no longer any basIs to conclude that a conflIct of Interest eXIsts and that the Mimstry 15 cannot rely on the FInley decIsIOn. In my VIew the Board has JunsdIctIOn to decIde that narrow Issue In my VIew It IS not an abuse of process to have that matter heard. B. The Merits HavIng carefully consIdered the decIsIOn of Vice-Chair FInley the eVIdence presented dunng the heanng and the arguments of the partIes, I conclude that the determInatIOn of Vice-Chair FInley that "a conflIct of Interest does eXIst for the Gnevor In her commumcatIOns officer posItIOn at the Oshawa C AC C wIth respect to that aspect of Emergency MedIcal Consultants, whIch Involves the transportatIOn of stable and non-emergency patIents'" IS stIll valId. I conclude that It IS stIll valId, despIte the dIvestment by the Mimstry of dIrect ambulance servIces It IS clear from readIng Vice-Chair FInley's decIsIOn that she dId not base her conclusIOn of a conflIct on the fact that the Mimstry provIded non-emergency patIent transfers, although It was a factor In her decIsIOn, she echoed the Mimstry's November 18 1994 letter to Ms Edwards that her "husband's busIness IS one that IS In many respects In "competItIOn" WIth that of the ambulance servIces" - specIfically In the transportatIOn of stable, non-emergency patIents She concluded at p 26 that "Emergency MedIcal Consultants could only be said to be 'In competItIOn' WIth the Ambulance/DIspatch ServIces In the transportatIOn of stable, non- emergency patIents" The pnmary basIs of her determInatIOn was that as an employee of the Oshawa CACC she was In a posItIOn whIch "gIves her access to certaIn InformatIOn regardIng the operatIOns of the Oshawa C AC C" and "[b]eIng the spouse of the owner of Emergency MedIcal Consultants also places her In a sItuatIOn where thIS InformatIOn could easIly be conveyed, If she were so InclIned. " ThIS fact - her access to InfOrmatIOn whIch could benefit her husband's stable patIent 16 transfer busIness - forms the central crux of Vice-Chair FInley's determInatIOn that a conflIct of Interest eXIsted. That the gnevor's access to "certaIn InformatIOn regardIng the operatIOns of the Oshawa C AC C " and her consequent abIlIty to "assIst her husband" was the key to Vice-Chair FInley's determInatIOn IS eVIdent throughout the rest of her decIsIOn. It leads to her conclusIOn that "assIstIng your husband" could Interfere wIth the gnevor's dutIes as a publIc servant, Influence or affect the carryIng out of her dutIes, or gIve her an advantage or benefit, pecumary or otherwIse denved from her employment as a publIc servant. It IS clear that the Board determIned that Ms Edwards' access to InformatIOn, combIned wIth her spousal relatIOnshIp placed her In a conflIct posItIOn whIch could Interfere wIth the performance of her dutIes and that "she could gaIn 'advantage denved from her posItIOn as a publIc servant " Vice-Chair FInley further concluded, at p 29 that "[w]Ith her beIng employed by the Oshawa C AC C and beIng the spouse of the owner of Emergency MedIcal Consultants, there IS a lInk based on whIch a reasonable member of the publIc could draw the conclusIOn that there IS a posSIbIlIty of an advantage floWIng from the Oshawa C AC C VIa the lInk (Ms Edwards) to Emergency MedIcal Consultants" LIkewIse, the Board concluded that "for the same reasons as the perceptIOn of the publIc, It would not be unusual for a competIng busIness to VIew Ms Edwards' posItIOn as posSIbly provIdIng an advantage to Emergency MedIcal Consultants" UnquestIOnably the "advantage" to whIch the Board refers IS the gnevor's access to InformatIOn whIch could benefit her husband's busIness Therefore It seems clear that the pnmary basIs of Vice-Chair FInley's determInatIOn of a conflIct of Interest IS the gnevor's access to InformatIOn, through her employment at the Oshawa 17 C AC C whIch could potentIally benefit her husband's busIness It does not turn on the fact that the Mimstry provIded ambulance servIces whIch competed wIth Emergency MedIcal Consultants The same concern - the potentIal for USIng InformatIOn obtaIned from her employment wIth the Oshawa CACC to benefit her husband's busIness - would eXIst whether or not the Mimstry was "In competItIOn" WIth MedStat. The Public Service Act IS not lImIted to sItuatIOns In whIch an employee's outsIde busIness IS In competItIOn WIth that of the government. RegulatIOn 977 SectIOn 15(b) precludes an employee from an outsIde undertakIng "In whIch he or she has an advantage denved from hIS or her employment as a publIc servant." Consequently the fact that the Mimstry no longer dIrectly provIdes ambulance servIces, and therefore IS not In "competItIOn" WIth MedStat, does not render Vice-Chair FInley's conclusIOns InvalId. The eVIdence showed that the dutIes and responsIbIlItIes of commumcatIOns officers at the Oshawa CACC have remaIned the same SInce 1996 They receIve, assess and respond to requests for both emergency and non-emergency patIent transfers They may dIspatch only authonzed, i.e "certIfied" ambulance servIces They do not have any contact wIth pnvate, non- authonzed transfer servIces Now as then, because non-emergency transfers are dIspatched on a non-pnonty basIs, there can be delays and cancellatIOns when authonzed ambulance servIces are not avaIlable due to other pnontIes On examInatIOn-In-chIef, the gnevor candIdly acknowledged that It was "possIble" to use her knowledge about delays to assIst Mr Edwards, although she felt that there would be "a lot of nsk" Involved, and that the "whole scenano" of Mr Edward's assemblIng a crew to go to the hospItal and hope that the patIent had enough money to pay for a pnvate transfer was "ludIcrous" 18 and "wouldn't play out." The key pOInt, though, IS that It IS possIble As stated by Vice-Chair FInley at p 28 "Only the possIbIlIty need be there for a conflIct of Interest to eXIst." Further the eVIdence does not support a conclusIOn that the possIbIlIty of provIdIng InfOrmatIOn whIch could benefit MedStat has been so dImImshed due to dIvestment that a reasonable person could no longer conclude "that there IS a pOSSIbIlIty of an advantage floWIng from the Oshawa C.A.C C VIa the lInk (Ms Edwards) to [MedStat]" The eVIdence was that a great deal of InformatIOn about non-emergency transfers IS avaIlable to a commumcatIOns officer There IS InformatIOn about pIck up locatIOns and destInatIOns, the number of calls beIng processed, the staffing patterns of the ambulance servIces, delays and InabIlIty to perform a patIent transfer InformatIOn can also be obtaIned about transfer call volumes Ms Edwards also acknowledged that she personally receIves calls at work, about one or two per month, from members of the publIc Inqumng about arrangIng a stable patIent transfer She stated that there IS a stnct prohIbItIOn on recommendIng a pnvate transfer company due to the Mimstry's desIre not to endorse (or be vIewed as endorsIng) any of the pnvate transfer compames Nevertheless, It would be possible for the gnevor to convey such InformatIOn to her husband to the potentIal benefit of MedStat. AgaIn, I wIsh to emphaSIze that there IS no suggestIOn that Ms Edwards has done thIS or would do thIS Rather the Issue IS whether the possIbIlIty eXIsts for her to use InformatIOn obtaIned from her Job as a commumcatIOns officer to the potentIal benefit of her husband's busIness The fact that many calls for non-emergency transfers no longer flow through the Oshawa CACC and that the volume of such calls has declIned does not mean that InformatIOn whIch could benefit MedStat IS no longer avaIlable to the gnevor DespIte the declIne In numbers, there 19 were stIll over 5000 non-emergency calls to the Oshawa CACC In 2004 That IS not an InsIgmficant number Consequently although an employee of the Oshawa CACC would no longer have access to total call volume as they would have had In 1996 there IS stIll a lot of InfOrmatIOn whIch could assIst the gnevor's husband, "If she were so InclIned." The eVIdence also does not establIsh that the gnevor would be unable to pass on thIS InfOrmatIOn to her husband. Although It mIght be dIfficult to do so dunng the day It would not be ImpossIble, partIcularly on breaks Nor would there be any way to restnct the gnevor's commumcatIOns wIth her husband after work. AccordIngly I cannot agree wIth the Umon that dIvestment has substantIally lessened the potentIal for the gnevor to acqUIre and convey to InformatIOn that could benefit MedStat. Because Vice-Chair FInley's determInatIOn that the gnevor In her Job had access to InfOrmatIOn whIch could assIst her husband's busIness IS stIll valId, her conclusIOns regardIng conflIct of Interest - actual, potentIal and perceIved - are stIll valId as well In thIS regard, the testImony of both Mr John DIngwell and Ms Sandy Van Kleef do not matenally assIst the gnevor The Umon asserts that theIr testImony demonstrates that a reasonable person, fully Informed, would not perceIve that the gnevor's employment at the Oshawa CACC to create an advantage for MedStat. Mr DIngwell IS General Manager and Vice PresIdent of two competItors of MedStat and a foundIng member and officer of the MedIcal TransportatIOn AssocIatIOn of Ontano He testIfied that, as a competItor he had no concern about the gnevor's employment wIth the Oshawa CACC He acknowledged, however that he had "lImIted 20 knowledge of CACC and Its operatIOns" was not aware of what InformatIOn a CACC employee had access to and had no knowledge of the conflIct of Interest regulatIOns or dIrectIves In Re Threader v Canada (Treasury Board) [1987] 1 F C 41(QUIcklaw) at par.23 the Court determIned that the "reasonable person" standard IS to be "determIned on an obJectIve, ratIOnal and Informed basIs" The test was descnbed as follows Would an Informed person, VIeWIng the matter realIstIcally and practIcally and havIng thought the matter through, thInk It more lIkely than not that the publIc servant, whether conscIOusly or unconscIOusly wIll be Influenced In the performance of hIS officIal dutIes by consIderatIOns havIng to do wIth hIS pnvate Interests? The test, therefore, IS an obJectIve one, not a subJectIve one Consequently the VIews of IndIVIduals, partIcularly If they are not well Informed, are of lIttle probatIve value In thIS matter based on the eVIdence presented, I conclude, as Vice Chair FInley dId, that a "reasonable person" an Informed person, VIeWIng the matter realIstIcally and practIcally and havIng thought the matter through, IS more lIkely than not to conclude that the gnevor's posItIOn could "provIde an advantage" to her husband's company Ms Van Kleef, a former CACC employee wIth a husband In a sImIlar busIness as Mr Edwards, testIfied that she dIscussed that sItuatIOn at the tIme of her hIre wIth her ImmedIate supervIsor who felt that It was not a conflIct of Interest. There was no eVIdence about the supervIsor's knowledge of the conflIct of Interest standards and gUIdelInes or famIlIanty wIth Mrs Van Kleef's husband's busIness The eVIdence further showed that when thIS sItuatIOn came to the attentIOn of the Mimstry through thIS proceedIng, management requested that Ms Van Kleef seek advIce from the Deputy Mimster concermng a possIble conflIct of Interest, as reqUIred by the conflIct of Interest regulatIOns and dIrectIves She dId so and on May 11 2005 21 the Deputy Mimster wrote a letter to Ms Van Kleef concludIng that she was In "a potentIal or perceIved conflIct of Interest as a publIc servant." In OPSEU (Schoular) and Ministry of Education GSB No 1203/2000 (Gray Vice- Chair) the Board gave no weIght to the Umon's argument that the gnevor's actIvItIes were known and approved by hIS ImmedIate supervIsors In a conflIct of Interest sItuatIOn. The Board stated at par 59 It was not theIr role to assess the conflIct of Interest In questIOn That was a matter on whIch the gnevor and Indeed any cIvIl servant, was bound to deal dIrectly wIth the Deputy Mimster (or hIs/her delegate for that purpose) The gnevor's ImmedIate supenors were entItled to expect that he would do that before acceptIng the assIgnments Consequently the VIews ofMs Van Kleef's supervIsor (or Ms Van Kleef, for that matter) about whether a conflIct of Interest eXIsts In thIS sItuatIOn does not assIst the gnevor's case In terms of Ms Edwards' use of a MedStat vehIcle and the abIlIty to access her resume from the MedStat web sIte, albeIt through a senes of lInks, I find these matters are ancIllary to my analysIs They are ancIllary because there IS no questIOn that the gnevor's spousal relatIOnshIp to Mr Edwards tIes her to MedStat. The Umon dId not challenge Vice-Chair FInley's determInatIOn at p 28 that the gnevor has "an Interest In the Company by vIrtue of her beIng a spouse In Ontano" These matters dId, however fuel the Mimstry's concern about there beIng a lInk between the gnevor and MedStat whIch would be apparent to members of the publIc They fueled the Mimstry's concern about beIng perceIved as havIng an employee that favors or could provIde an advantage to one pnvate transportatIOn company (MedStat) over any other I find It unnecessary to rule on whether Ms Edwards was In breach of the 1996 "settlement" or If she vIOlated her oblIgatIOns to report a possIble conflIct of Interest when she 22 learned that her husband had resumed stable patIent transfers In the Oshawa area. The gnevor was not dIscIplIned or reqUIred to accept a transfer or resIgn for those matters Rather she was asked to "remove [her] self from the conflIct of Interest sItuatIOn." ThIS decIsIOn, therefore, deals wIth whether Vice-Chair FInley's determInatIOn that a conflIct of Interest sItuatIOn eXIsted IS stIll valId after the Mimstry's dIvestment of land ambulances servIces For all the reasons set forth above, I find that It IS stIll valId. In rulIng that the conclusIOns reached In the Finley decIsIOn remaIn valId, I wIsh to emphasIze that there has been no suggestIOn and I have made no findIngs that Ms Edwards has done anythIng Improper Rather the conflIct of Interest IS Inherent In the gnevor's Job and the nature of her husband's busIness Remedy and Conclusions The Umon agreed, In cloSIng arguments, that If I were to find that the FInley decIsIOn was stIll applIcable that was the end of the matter For all of the reasons set forth above I do find that the FInley decIsIOn IS stIll applIcable I would, however urge the Mimstry to explore If some resolutIOn was possIble For all of the above reasons, the gnevances are dIsmIssed. Issued at Toronto thIS 30th day of May 2006 :f~ru1161