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

Ontario Public Service Employees Union (Edwards)

Union

• and -

The Crown in Right of Ontario (Ministry of Health and Long-Term Care)

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

FOR THE UNION

David Wright Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Fateh Salim Counsel Ministry of Government Services

HEARING

October 24, November 16, December 19, 2005; March 27 & 28, April 24 & April 25, May 1, 2006,

Decision

In 1996, Vice-Chair Finley determined that the grievor, Sandra Edwards, was in a conflict of interest situation in regard to her position as a communications officer at the Oshawa Central Ambulance Communications Centre (C.A.C.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 Ministry’s divestment of land ambulance services to municipalities in 2000.

Facts

1. The Finley Decision

On January 9, 1996, Vice Chair Finley determined that “a conflict of interest does exist for the Grievor in her communications officer position at the Oshawa C.A.C.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 grievor’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 Grievor is a Communications Officer in the Oshawa Central Ambulance Communications Centre (OCACC). She commenced employment there on April 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 Grievor has no disciplinary record. …The capability and competency of the Grievor 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 Communications Officer is responsible for the dispatching of only Ministry of Health authorized ambulance services and it does not involve any contact with non-authorized 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 Ministry of Health authorized ambulance services, these transfer[s] are undertaken only on a non-priority basis. Consequently, there can be delays or cancellations when authorized ambulance services are not immediately available due to other priorities. Where the non-emergency patient transfers are undertaken by ambulance services, they would be scheduled and dispatched through the OCACC by one of its Communications Officers.

4. In response to a growth in non-emergency transfers during a period of restraint, transportation services other than ambulances have commenced offering 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 Communications Officers. To date, these services have not been used by hospitals, facilities or patients in the area served by the OCACC. …

5. The Employer agrees that to date there is no evidence that the Grievor has provided any information received in the course of her duties to assist her husband’s business.

6. The Employer agrees that to date the Grievor’s husband’s business has not derived any benefit from the Ministry of Health in respect of non-emergency medical transfers.

In the decision, the Board noted at p. 26 that “[t]he Ambulance Act restricts the response to emergency calls and the transportation of individuals involved in such emergencies to Ministry of Health ambulance services. No such restriction 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 “gives her access to certain information [such as call volume and inter-facility transfer information] regarding the operations of Oshawa C.A.C.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 grievor 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 grievor’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, pecuniary or otherwise, derived 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 arise.” 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

During the pendency of the grievance before Vice-Chair Finley, Ms. Edwards had been transferred to a temporary position within the Ministry. Upon receipt of the decision, the Ministry offered Ms. Edwards two choices: (1) reinstatement to her position at the Oshawa CACC provided that “we receive an undertaking acceptable to the Ministry indicating that the conflict of interest no longer exists”, or (2) a lateral transfer, as a communications officer, at another CACC outside the area of operation of EMC.

On February 26, 1996, an OPSEU Grievance Officer forwarded to the Ministry “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 successor of EMC. In it, Mr. Edwards agreed to the following, upon “written 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 written notice to the Ministry if I resume this aspect of my business.

Upon receipt of this letter, Ms. Edwards was returned to her position as a Communications Officer at the Oshawa CACC. The Ministry relied upon this undertaking from Mr. Edwards to resolve the conflict of interest issue, and all of the relevant parties – the Ministry, OPSEU and the grievor were aware of this resolution.

C. The Ministry’s Divestment of Ambulance Services

In 1996, at the time of the Finley decision, the Ministry of Health directly provided and fully funded land ambulance services either through provincial ambulance services, private ambulance services (mostly Crown Corporations), or hospital-based ambulance providers. The Ambulance Act restricted the response to emergency calls and the transportation of individuals involved in such emergencies to these authorized Ministry of Health ambulance providers. In other words, only a Ministry authorized ambulance service provider could be dispatched to an emergency call. No such restriction existed on the transportation of stable non-emergency patients, and on occasion, private companies undertook such transfers. Authorized ambulance service providers also performed stable, non-emergency patient transfers, on a non-priority basis.

In 1996, the Ministry of Health provided dispatch services for all authorized ambulance services, including both emergency and non-emergency transportation, through the various CACCs located throughout the province. Emergency (911) calls would be forwarded by the police to the appropriate CACC for the nearest ambulance to be dispatched. Non-emergency patient transfer calls were also dispatched by the CACC, on a non-priority basis. In 1996, a Communications Officer at a CACC could only dispatch a Ministry authorized ambulance service.

Effective January 1, 2000, the province began to download the provision of land ambulance services to municipalities. As a result, the Ministry no longer directly provides land ambulance services. Funding for the service is split between the province and the municipality. One of the municipalities that took over this ambulance function is the Regional Municipality 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 significant increase in the number of private medical transfer companies. These companies do not provide emergency ambulance services. They transport stable, non-emergency patients as well as cover special events. Unlike the situation in 1996, these companies now operate in the area serviced by the Oshawa CACC.

Increasingly, hospitals have entered into contracts with private medical transfer companies 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 significantly increased. For example, there were 9,122 non-emergency (Code 1 and 2) and 27,557 emergency (Code 3 and 4) calls to the Oshawa CACC in 2000, whereas there were 5,077 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 written notice to the Ministry 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 Ministry’s divestment of ambulance services, the letter was no longer effective. He took no steps, however, to confirm that conclusion with the Ministry.

The grievor testified that she did not learn that her husband had resumed this aspect of the business until the SARS crisis in the Spring of 2003. She testified that Mr. Edward’s told her that the Ministry had contacted him in regard to providing medical transportation services in the area, which he found ironic in light of past events. She testified that she took no steps to advise the Ministry about this for several reasons. First, in her view, the letter obligated her husband to notify the Ministry, not her. Second, she felt that there was no longer a conflict in light of the Ministry’s divestment of ambulance services. Third, she felt that the Ministry was already aware of her husband’s activities in relation to MedStat since the Ministry 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” written on it. The matter was referred up to Senior Manager Dennis Brown. In December 2004, Mr. Brown assigned Mr. Brian Clark, Coordinator of Field Services, to determine whether MedStat was in violation of its 1996 agreement with the Ministry.

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 Ministry’s February 9, 1996 letter to Ms. Edwards outlining her two options, the February 23, 1996 letter to the Ministry from Mr. Edwards and the cover letter which accompanied it from OPSEU. He was also provided with a print out of MedStat’s web site. He reviewed the documents and met with senior 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 Ministry. He also concluded that the Ministry’s divestment of the provision of land ambulances services to the municipalities 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 Ministry to the municipalities. He served on a subcommittee dealing with changes to the Ambulance Act. He chaired the “Certification Committee” which dealt with the Ministry’s certification of ambulance services. Finally, he was involved in changes to the position specification and class standards for Communication Officers. As he testified at the hearing, 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.”

Based on Mr. Clark’s recommendation, the Ministry 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 “written 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 website (www.MedStat.durham.net) that advertises that it has been servicing Southern Ontario and in particular the Durham Region since 1989.

• MedStat also advertises itself as a transfer leader in alternate patient transport for stable, non-critical patients.

• You have attached your personal resume to MedStat’s website and, on one or more occasions, you have driven 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 Ministry 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 Ministry has no option but to enforce the decisions of the Deputy Ministry and the Grievance 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 communications officer, to another Ministry 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 minimum after that date, place you on a suspension without pay until the conflict is removed or until we have determined an appropriate course of action. …

On February 23, 2005, the grievor filed a grievance contesting the Ministry’s January 5, 2005 letter. On the same date, OPSEU filed a Union grievance, asserting that the Finley decision was “no longer a valid decision given that the circumstances/facts relied upon in that award have changed.”

Since that time, the grievor 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 grievor, for many years, has been active in the Union. She has played a significant role in grievance administration and in negotiations, as well as serving on the Ministry Employee Relations Committee.

Positions of the Parties

1. For the Employer

The Employer first argues that the grievances 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 grievor’s job as a communications 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 Union to circumvent that decision by raising the same issue again, due to a change in government policy, violates the principles 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 Union to relitigate an issue which has already been decided. To allow that, it contends, would be an abuse of process. In its view, the Union 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 SCC 63, [2003] 3 S.C.R.77 (S.C.C).

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 Ministry, but was a binding settlement which involved the Ministry, the Union and the grievor. It argues that Mrs. Edwards was fully aware and agreed to the terms of the February 23, 1996 letter as a resolution of her grievance. It submits that the Ministry relied on this agreement, in good faith, and that the grievor 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 within the Oshawa CACC catchment area in 2000, and the Ministry asserts, even earlier. In regard to this last point, it contends that an adverse inference should be drawn by Mr. Edward’s refusal to provide documentation from the period prior to 2000, citing OPSEU (Larman) and Ministry of Community, Family and Children’s Services (2003), GSB No. 1617/01 (Abramsky). The evidence shows, the Ministry argues, that Mr. Edwards resumed this aspect of his business without written notice to the Ministry as required. It submits that Mrs. Edwards should have notified the Ministry at that point, but even if she did not know about it until March 2003, she should have advised the Ministry of the matter then but did not. It argues that Ms. Edwards had a dual obligation to advise the Ministry – under the February 1996 agreement and under the conflict of interest guidelines. It contends that Ms. Edwards was well aware that an employee, under the conflict of interest regulations, has a positive duty to seek advice from the Deputy Minister regarding a possible conflict of interest, which she failed to do. In the Ministry’s submission, it clearly established a breach of the 1996 agreement.

In the alternative, the Employer contends that the Board’s jurisdiction in this matter is quite limited. In its view, the Board may only determine if the Ministry’s divestment of direct ambulance services to the municipalities in 2000 renders the Finley decision inapplicable. In this regard, the Employer contends that the Union provided no evidence that anything changed in relation to the operation of the CACCs. It submits that the Ministry divested its ambulance service, not its dispatch function, and that the role of a communications officer has remained the same. In its view, Ms. Finley’s determination that a conflict existed was based on the grievor’s job as a communications 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 Union 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 Ministry’s divestment of land 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 (Union Grievance) and Ministry of Community 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 Ministry of Education (2002), GSB No. 2002/37 (Gray).

The Union contends that the Ministry’s divestment of land ambulance services means that the Ministry is no longer in the same business as MedStat, like it was in 1996 when both the Ministry and MedStat provided non-emergency patient transfers. It asserts that the Ministry is no longer “in competition” with MedStat. Instead, MedStat’s competitors are the Regional Municipality of Durham and other private transfer companies. The Union asserts that, with divestment, there no longer is a conflict of interest between the business of the Ministry and MedStat.

Further, the Union submits that in 1996 there was no private stable patient transfer business in Ontario, whereas now it is a vibrant industry. This, in its view, has had a significant impact on the information which may be obtained by the grievor in her position as a Communications Officer. No longer, it submits, is a Communications Officer privy to total call volume or inter-facility transfer information since the Oshawa CACC no longer handles all of the calls. The Union 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 grievor to pass on to her husband. The Union further asserts that the grievor’s ability to pass on information (such as delays in transfers) while at work, when it might be useful, is quite limited.

The Union 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 Communications Officer.

In the Union’s view, the issue of the alleged breach of the 1996 agreement is a red-herring, as is her failure to advise the Ministry. Those issues, it submits are red-herrings because the Ministry did not take action against the grievor because of them. Instead, the Ministry has acted on the basis that a conflict of interest exists. It further contends that the grievor’s failure to advise the Ministry was reasonable under all of the circumstances.

Finally, the Union submits that the Board should be careful in its scrutiny of the Employer’s decision in light of the grievor’s active Union role and the timing of the decision, coming shortly before a strike was anticipated.

Decision

1. Jurisdiction

I conclude that I do have jurisdiction in this matter, albeit a very narrow one. Specifically, I have jurisdiction to determine whether the Ministry’s divestment of ambulance services to the municipalities in 2000 renders the decision of Vice-Chair Finley inapplicable in 2005.

In my view, the Union and the grievor 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 Ministry’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 integrity of its decisions. But in this case, there is a genuine issue raised by the Ministry’s divestment in regard to the continuing validity of the Finley decision. The divestment was a major change in policy, yet the Ministry is seeking to enforce the Finley decision. Based on that decision and the alleged breach, it has demanded that the grievor “must remove [her]self from the conflict of interest situation.” She can either transfer to another CACC or resign her employment. These are serious consequences. Both the Union and the grievor contend that, in light of the divestment, there is no longer any basis to conclude that a conflict of interest exists and that the Ministry cannot rely on the Finley decision. In my view, the Board has jurisdiction 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 during the hearing and the arguments of the parties, I conclude that the determination of Vice-Chair Finley that “a conflict of interest does exist for the Grievor in her communications officer position at the Oshawa C.A.C.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 Ministry 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 Ministry provided non-emergency patient transfers, although it was a factor. In her decision, she echoed the Ministry’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 primary 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.A.C.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 transfer business – forms the central crux of Vice-Chair Finley’s determination that a conflict of interest existed.

That the grievor’s access to “certain information regarding the operations of the Oshawa C.A.C.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 grievor’s duties as a public servant, influence or affect the carrying out of her duties, or give her an advantage or benefit, pecuniary or otherwise, derived 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 derived 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.A.C.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.A.C.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 grievor’s access to information which could benefit her husband’s business.

Therefore it seems clear that the primary basis of Vice-Chair Finley’s determination of a conflict of interest is the grievor’s access to information, through her employment at the Oshawa C.A.C.C., which could potentially benefit her husband’s business. It does not turn on the fact that the Ministry 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 Ministry 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 derived from his or her employment as a public servant.” Consequently, the fact that the Ministry 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 communications 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 authorized, i.e., “certified”, ambulance services. They do not have any contact with private, non-authorized transfer services. Now, as then, because non-emergency transfers are dispatched on a non-priority basis, there can be delays and cancellations when authorized ambulance services are not available due to other priorities.

On examination-in-chief, the grievor 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 risk” involved, and that the “whole scenario” of Mr. Edward’s assembling a crew to go to the hospital and hope that the patient had enough money to pay for a private transfer was “ludicrous” 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 diminished 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 communications 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 inquiring about arranging a stable patient transfer. She stated that there is a strict prohibition on recommending a private transfer company due to the Ministry’s desire not to endorse (or be viewed as endorsing) any of the private transfer companies. Nevertheless, it would be possible for the grievor 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 communications 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 grievor. Despite the decline in numbers, there were still over 5000 non-emergency calls to the Oshawa CACC in 2004. That is not an insignificant 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 grievor’s husband, “if she were so inclined.”

The evidence also does not establish that the grievor would be unable to pass on this information to her husband. Although it might be difficult to do so during the day, it would not be impossible, particularly on breaks. Nor would there be any way to restrict the grievor’s communications with her husband after work. Accordingly, I cannot agree with the Union that divestment has substantially lessened the potential for the grievor to acquire and convey to information that could benefit MedStat.

Because Vice-Chair Finley’s determination that the grievor, 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 materially assist the grievor.

The Union asserts that their testimony demonstrates that a reasonable person, fully informed, would not perceive that the grievor’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 Ontario. He testified that, as a competitor, he had no concern about the grievor’s employment with the Oshawa CACC. He acknowledged, however, that he had “limited 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) 1986 CanLII 6861 (FCA), [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 described 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 private 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 grievor’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 familiarity with Mrs. Van Kleef’s husband’s business. The evidence further showed that when this situation came to the attention of the Ministry through this proceeding, management requested that Ms. Van Kleef seek advice from the Deputy Minister concerning a possible conflict of interest, as required by the conflict of interest regulations and directives. She did so and on May 11, 2005, the Deputy Minister 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 Union’s argument that the grievor’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 grievor, and indeed any civil servant, was bound to deal directly with the Deputy Minister (or his/her delegate for that purpose). The grievor’s immediate superiors were entitled to expect that he would do that before accepting the assignments.

Consequently, the views of Ms. 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 grievor’s case.

In terms of Ms. Edwards’ use of a MedStat vehicle and the ability to access her resume from the MedStat website, albeit through a series of links, I find these matters are ancillary to my analysis. They are ancillary because there is no question that the grievor’s spousal relationship to Mr. Edwards ties her to MedStat. The Union did not challenge Vice-Chair Finley’s determination at p. 28 that the grievor has “an interest in the Company by virtue of her being a spouse in Ontario.” These matters did, however, fuel the Ministry’s concern about there being a link between the grievor and MedStat which would be apparent to members of the public. They fueled the Ministry’s concern about being perceived as having an employee that favors or could provide an advantage to one private 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 learned that her husband had resumed stable patient transfers in the Oshawa area. The grievor 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 Ministry’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 grievor’s job and the nature of her husband’s business.

Remedy and Conclusions

The Union 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 Ministry to explore if some resolution was possible.

For all of the above reasons, the grievances are dismissed.

Issued at Toronto this 30th day of May, 2006.