P-2011-2193

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Oral Binda

Complainant

• and -

The Crown in Right of Ontario (Ministry of Environment)

Employer

BEFORE

Kathleen G. O’Neil

Vice-Chair

FOR THE COMPLAINANT

Oral Binda

FOR THE EMPLOYER

Cathy Phan Ministry of Government Services Labour Practice Group Counsel

HEARING SUBMISSIONS

December 14, 2011. February 2, 2012.

Decision

1This decision deals with preliminary issues raised by the employer in regards to the grievance of Mr. Oral Binda in which he complains that he has been the subject of a reprisal for disclosing wrongdoing by his superiors. The employer takes the position that the Board should dismiss the case without a hearing on the merits, either because it is not a complaint over which the board has jurisdiction, or because it is untimely. As to jurisdiction, the employer says that the complainant has not provided proper notice to the deputy minister as required by the Public Service of Ontario Act, 2006 (abbreviated below as PSOA), and has not provided sufficient allegations of reprisal that would allow the board to take jurisdiction pursuant to Part VI of the PSOA, sometimes referred to conversationally as the "whistleblower provisions". Mr. Binda, the complainant, urges the Board to hear the matter.

2Excerpts from statute and regulations considered in this decision are appended to these reasons for ease of reference.

Procedural Context and Nature of the Complaint

3At this stage, we are dealing only with the preliminary motion from the employer challenging the Board’s jurisdiction to proceed further. The question to be answered in this decision is whether the Board has the power to proceed with the resolution of the complainant’s issues as he requests. In dealing with motions of this kind, the Board, in line with its usual practice, treats the facts as asserted in the complaint as if they were true and would be provable at a hearing where evidence was heard under oath, but does not make any findings of fact. If there were a hearing on the merits, there is the possibility that the Board would find that the facts were different from those asserted by the complainant, especially as the employer would also have an opportunity to put in evidence that might put a different light on the complainant’s view of the facts, as the employer has denied all the allegations made by the complainant. The facts set out below do not represent all that Mr. Binda wrote in his complaint and said at the hearing, but are those most relevant to this decision. For the purposes of this decision, which only deals with the jurisdictional issue, it is not necessary to name those to whom the complainant attributes wrongdoing.

4Mr. Binda, a Senior Manager in the Ministry of Environment, has complained to the Board to the effect that he has been harassed, bullied and is the victim of reprisals because he reported wrongdoing. He states that he is a member of a minority, and has been treated with a lack of respect, while observing favouritism towards individuals of non-diverse cultures. He also finds the human resources practices in his branch to be unfair, and to include favouritism, for example, in respect of hirings, promotions and career development opportunities. He states that he made complaints verbally and in writing to his Assistant Deputy Minister and shared the struggles he faced as a minority with a Deputy Minister from another Ministry with whom he was paired in a mentorship relationship. He later met with his own Deputy Minister about the issues. The complainant said he had not requested the Deputy take action for fear of repercussions, but he became convinced action was taken nonetheless and that he was now a “walking target” for members of other ranks of the management team. He states that he is a minority who worked very hard to get where he is and feels he is being taken advantage of and has had racial slurs directed at him by a manager.

5In the material filed with this Board, Mr. Binda alleges that, as a result of having reported wrongdoing to upper management, his superior constructed claims to launch a WDHP claim against him, which led to a suspension pending investigation of which he was advised on November 23, 2010. As of the hearing date of this matter, he had been on paid leave for more than a year, but states that he has nonetheless suffered both monetary and other losses. Mr. Binda describes stress, anxiety and other negative health effects from the WDHP process following the complaint against him as well.

6Those of the allegations set out in the complainant’s material which are associated with specific dates range from 2009 to January 2011. This complaint was filed with the Board on September 26, 2011, on a form entitled “Political Activity/Disclosing and Investigating Wrongdoing.” Part VI of the PSOA provides for directives to be established and disseminated to public servants for how such disclosures are to be made. Counsel advises those directives have established that disclosures would normally be made in the first instance to the Ethics Executive. The designation of the Ethics Executive varies according to the level and type of public servant making the disclosure. Further to s. 60(2) of the PSOA, the Ethics Executive for the complainant would be the Deputy Minister, as Mr. Binda is an employee of a Ministry.

7On April 28, 2011, about five months prior to filing this complaint with the Board, Mr. Binda wrote the Office of the Integrity Commissioner, although that letter was not entered in evidence. That office responded in writing, indicating the file was under review, and then communicating the results of that review. These letters, dated May 12 and September 28, 2011, respectively, were produced at the hearing of this matter. The second letter indicates that the Commissioner had determined that she did not have jurisdiction to deal with Mr. Binda’s allegations. Explaining the process, the letter indicated as follows:

Upon receipt of a disclosure this Office must first determine whether the subject matter is a disclosure of potential wrongdoing. “Wrongdoing” is defined in section 108 of the PSOA. While a discloser may feel that a matter is a wrongdoing as it relates to them personally, it may not be a wrongdoing as defined in the PSOA. If the matter is not a potential wrongdoing as defined in the PSOA, this Office cannot receive the disclosure.

If this Office can receive the disclosure of potential wrongdoing, an initial assessment under section 117 of the PSOA must be performed. If any of the circumstances listed in section 117 apply this Office is required by the PSOA to refuse to deal with the disclosure. There are no override powers or discretion in this regard.

8The letter from the Commissioner's office, while emphasizing that it had made no finding about whether a wrongdoing had occurred, found that, although the allegations had been received as a disclosure of potential wrongdoing, it must refuse to deal with Mr. Binda’s disclosure. This was based on a finding, pursuant to s. 117.2 of the PSOA, that it was an employment matter that could be dealt with by a dispute resolution mechanism, such as the Human Rights Tribunal or the Public Service Grievance Board. Their summary of the allegations noted that they included allegations of contravention of the Ontario Human Rights Code and the Occupational Health and Safety Act involving bullying and discriminating against Mr. Binda in employment on the basis of a prohibited ground. As well, they included allegations to the effect that the employer failed to deal properly with a complaint regarding workplace discrimination and harassment and the encouragement by representatives of the employer to other public servants to file complaints under the Workplace Discrimination and Harassment Prevention Policy (WDHP) against him as a consequence of verbal complaints he had made to two deputy ministers concerning his superior’s conduct toward him.

9At the hearing of this motion, the Board afforded both sides time to make further submissions in writing on the timeliness aspect of the complaint, all of which I have reviewed in coming to this decision.

Jurisdiction under Part VI of the PSOA - Disclosing and Investigating Wrongdoing.

10Since Mr. Binda made clear that he intended this complaint to be filed under Part VI as a complaint of reprisal for disclosing wrongdoing, it is appropriate to deal first with that portion of the employer’s motion related to Part VI.

11Counsel for the employer argued that the complaint is really a general allegation of harassment, which does not fit within the definition of wrongdoing set out in Part VI of the PSOA. The Board is invited to conclude that no report of wrongdoing as defined in Part VI of PSOA had been made by the complainant, and therefore, there could be no reprisal of the sort governed by those provisions. It is the employer’s position that in order for the Board to have jurisdiction under the reprisal sections, there must be a disclosure of the sort provided for in Part VI of PSOA. Counsel submits that the consequence of a lack of the type of disclosure contemplated by Part VI is that the reprisal sections are not triggered, and therefore, there is no proper complaint under Part VI before the Board, so that the complaint should be dismissed. Further, counsel notes that it is not evident that the person accused of carrying out the reprisal even knew of the complainant’s conversations with the Deputy Minister or the issues discussed.

12By contrast, Mr. Binda maintains that he did report wrongdoing, and discussed it with his Deputy Minister in the summer of 2010, having earlier spoken to the Assistant Deputy Minister and a Human Resources representative about the problems he was facing. He is convinced that his disclosure got back to the people about whom he complained and that he has suffered various negative consequences at work because of his disclosure, including a suspension as a result of the encouragement of a contrived WDHP complaint.

13The definition of wrongdoing in the PSOA is as follows:

108. (1) In this Part,

“wrongdoing” means,

(a) a contravention by a public servant, a minister or parliamentary assistant of an Act of the Assembly or of the Parliament of Canada, or of a regulation made under such an Act,

(b) an act or omission of a public servant, a minister or parliamentary assistant that creates a grave danger to the life, health or safety of persons or to the environment, where the danger is unreasonable having regard to his or her duties, powers and functions and any other relevant circumstance,

(c) gross mismanagement by a public servant, a minister or parliamentary assistant in the work of the public service of Ontario,

(d) directing or counselling wrongdoing within the meaning of clauses (a) to (c) by a public servant, a minister or parliamentary assistant. 2006, c. 35, Sched. A, s. 108 (1).

14The statute then provides how a disclosure of wrongdoing may be made:

114. Where a public servant or former public servant has reason to believe that there has been wrongdoing, he or she may disclose the wrongdoing in accordance with the procedures established under section 115. 2006, c. 35, Sched. A, s. 114.

Directives, Public Service Commission

115. (1) The Public Service Commission may by directive establish procedures to deal with disclosures of wrongdoing by,

(a) a public servant who works in a ministry;

15The section of Part VI of PSOA dealing with reprisals is s. 139, which reads as follows:

139. (1) No person shall take a reprisal against a public servant because

he or she has,

(a) sought advice about making a disclosure about wrongdoing accordance with this Part;

(b) made a disclosure about wrongdoing in accordance with this Part;

(c) co-operated in an investigation or other process related to a disclosure of wrongdoing made in accordance with this Part;

(d) acted in compliance with this Part; or

(e) sought enforcement of this Part. 2006, c. 35, Sched. A, s. 139 (1)

(2) For the purposes of subsection (1), a reprisal is any measure taken against a public servant that adversely affects his or her employment or appointment and includes but is not limited to,

(a) ending or threatening to end a public servant’s employment or appointment;

(b) disciplining or suspending or threatening to discipline or suspend a public servant;

(c) imposing or threatening to impose a penalty related to the employment or appointment of a public servant;

(d) intimidating or coercing a public servant in relation to his or her employment or appointment. 2006, c. 35, Sched. A, s. 139 (2).

16It can be seen that this part of the PSOA prohibits a reprisal, defined broadly to include any measure with an adverse employment consequence, because a public servant has made a disclosure alleging wrongdoing “in accordance with this Part”. The phrase “in accordance with this Part” incorporates a number of the provisions of Part VI. Since the complainant is an employee of a Ministry, it would appear that disclosing alleged wrongdoing in accordance with Part VI would involve elements such as: making a disclosure that alleges wrongdoing of the kind defined in s. 108, and in accordance with the directives established under s. 115 (1) which provide for disclosure in most circumstances to the Deputy Minister. There are also circumstances in which disclosure directly to the Integrity Commissioner is contemplated.

17The Board’s jurisdiction over reprisal complaints comes from subsections 140 (1) and (3) of PSOA, which read as follows:

140. (1) A public servant described in subsection (2), (3) or (4) may complain under this section that he or she has suffered a reprisal prohibited by section 139. …

(3) A public servant employed under Part III who is not subject to the terms and conditions of a collective agreement may file the complaint with the Public Service Grievance Board.

18I note that, although the provisions of Part VI have been in effect for a few years now, the Board has not received many complaints of reprisal under that Part, and thus its jurisprudence on the subject is in its infancy. This is the first case considering whether the subject matter disclosed is of a kind sufficient to base a complaint under Part VI. As noted, it is the employer’s position that the complainant is alleging general harassment, something not covered by the definition in s. 108, set out above, so that the Board has no jurisdiction over the matter under Part VI. The complainant disagrees.

19In order for the Board to be able to hear a reprisal complaint under Part VI, it must be brought by a public servant not subject to a collective agreement and it must allege a reprisal prohibited by section 139. It is not disputed that the complainant is excluded from collective bargaining as a manager, and thus this is a proper forum if the other elements of a complaint within the Board’s jurisdiction are present. One of the triggers for prohibited reprisals is a disclosure of wrongdoing under Part VI. The kinds of wrongdoing by public servants listed in section 108 of Part VI of PSOA are divided into four categories which can be summarized as:

(a) breach of a statute or regulation, whether provincial or federal;

(b) an act or omission that creates a grave and unreasonable danger ;

(c) gross mismanagement;

(d) directing or counselling such wrongdoing.

20The complainant’s case is based on the disclosure of wrongdoing by public servants to upper management, including his deputy minister, which he alleges resulted in negative targeting at work, including the mounting of a WDHP complaint against him. There is much in the complaint that falls within employer counsel’s characterization of general harassment, and which would not obviously fall into any of the four broad categories of wrongdoing set out in section 108. However, the complainant also states that he disclosed matters of favouritism associated with “non-diverse cultures” and difficulties at work which he attributes to the fact that he is a member of a minority. The Form 1 filed with the Board, in which he set out his complaint, does not refer explicitly to a breach of statute as part of the disclosures of wrongdoing that he made. However, what I understand to be the same disclosure is described in the summary of the allegations made by the complainant in the context of his later contact with the Office of the Integrity Commissioner, contained in the correspondence presented at the hearing, as involving allegations of breaches of both the Human Rights Code and the Occupational Health and Safety Act. Allegations of negative employment consequences based on distinctions based in race, place of origin or ethnicity are reasonably viewed as allegations of a breach of the Human Rights Code, in any event.

21The letter from the Office of the Integrity Commissioner, as noted above, communicated the decision that, although it had received his allegations as a potential disclosure of wrongdoing, that office would not deal with the matter as it was an employment issue better dealt with either at the Human Rights Tribunal or this Board. I note that the Commissioner did not find that what had been disclosed fell outside the definition of wrongdoing in the PSOA or that there had been such a substantial delay between the disclosure and the incidents that were the subject matter of the disclosure, that proceeding would serve no useful purpose, an option available under s. 117.7.

22I am persuaded that to the extent the complainant’s disclosure to the Deputy Minister included allegations of breach of a statute such as the Human Rights Code, it qualifies as a disclosure of wrongdoing under PSOA. It was not argued that the disclosure did not follow the relevant directives, or that his disclosure to the Deputy Minister, who is also the relevant Ethics Executive, did not qualify procedurally as a disclosure under Part VI. In the circumstances, it is my view that there is a sufficient basis to find that the complainant did make a disclosure of alleged wrongdoing in accordance with Part VI.

23I am also persuaded that some of the allegations set out in the complaint amount to allegations of reprisal for disclosing allegations of wrongdoing to upper management. Most centrally, a WDHP investigation, resulting in his removal from the workplace and associated losses, is alleged to have been contrived in response to his disclosures of wrongdoing. This qualifies as an adverse employment consequence of the type contemplated by subsections 139(2) (b) and (c), set out above. In sum, I am of the view that there is a sufficient basis for the Board to entertain this complaint in accordance with its jurisdiction under Part VI of the PSOA.

24The complaint as written makes a variety of other allegations about improper behaviour and lack of fair process which are undated and not all in a time sequence in which they could be part of a reprisal for the disclosures in the summer of 2010. Rather, a number of them appear to be part of a narrative of events which the complainant sees as the wrongdoing which lead to his disclosures to the two deputy ministers. The complainant only asked the Board to entertain his complaint under Part VI. Thus, it is not strictly necessary to address the employer’s submissions about the status of this complaint under the Board’s more general jurisdiction to hear complaints concerning terms and conditions of employment. However, given the employer’s detailed submissions, the Board finds it appropriate to address them to the extent necessary to illustrate the difference in the legislature’s approach to the two different sources of the Board’s jurisdiction under Part VI and Regulation 378/07.

Timeliness and Procedural requirements of Regulation 378/07

25The Board’s more general jurisdiction to hear complaints concerning terms and conditions of employment of provincial government employees excluded from collective bargaining is subject to the provisions of Regulation 378/07 under the PSOA. Employer counsel submitted that, by lodging his complaint under Part VI, the complainant had attempted to bypass the mandatory requirements of Regulation 378/07 in terms of both timeliness and the required period for dispute resolution, something the Board should not allow.

26In this second prong of its preliminary submissions, the employer submits that the complaint should be dismissed on the additional basis that the mandatory provisions of Sections 8 and 9 of the regulation have been ignored. These provisions require that notice of proposal to file a complaint must be given to the Deputy Minister and that a complainant is not eligible to file a grievance until the expiry of the period of at least thirty days prescribed for internal dispute resolution. In support of this argument, counsel refers to the Board’s recent decisions in Muldoon v. Ontario (Community Safety and Correctional Services), 2011 CanLII 83724 (ON PSGB) and Jackson v. Ontario (Community Safety and Correctional Services), 2011 CanLII 36564 (ON PSGB), which held that if the prescribed process is not followed, there is no jurisdiction for the Board to hear the matter.

27As to the requirement under s. 8(1) of Regulation 378/07 that a complainant give notice to his or her deputy minister, the employer argues firstly that Mr. Binda’s meeting with the deputy minister of another ministry as part of a mentorship program, does not amount to notice under the regulation, as she is not his deputy minister, meaning the deputy minister of the complainant’s home ministry. As to Mr. Binda’s meeting with the Deputy Minister of the Environment in the summer of 2010, counsel submits that this is not proper notice, as notice is required to be in writing. Counsel submits that the fact that section 8(3) of the Regulation states that the notice must set out the reasons for the complaint, suggests writing, since reasons cannot be set out in a verbal statement. This is supported by Section 3(1) of the Board’s rules, in counsel’s submission, which requires that an application to the Board shall be delivered to the Board in Form 1 and must include a copy of the complaint that was filed with the deputy minister.

28In the further alternative, counsel argues that even if one were to give credence to the idea that a verbal meeting could amount to notice, the complaint is almost a year out of time, and should be dismissed as being grossly out of time.

29Further, the employer argues that the Board has no jurisdiction to extend the time limits, making a very similar argument to the one outlined, but not decided, in the Board’s decision in Lee v. Ontario (Ministry of Community Safety and Correctional Services), 2011 CanLII 49517 (ON PSGB) as follows:

Further, counsel for the employer argues that the timelines in section 8 (1) of Regulation 378/07 are mandatory timelines that are not able to be extended by the Board. Counsel refers to Section 54 of the former regulation 977, no longer in effect, which provided the Board with jurisdiction to extend time limits. Counsel argues that when the new regulation 378/07 was implemented, it contained no similar provision, and thus any jurisdiction the Board had to extend time limits is no longer applicable.

In support of the employer’s arguments on timeliness, counsel relies on the following case law: Daniel Beauchamp, 2010 CanLII 6691 and 11287, (ON L.R.B.), Service Employees International Union, Local 204 v. Leisureworld Nursing Homes Ltd., [1997] O.J. No. 1469, 99 O.A.C. (Divisional Court), affirmed by the Court of Appeal with brief reasons reported at [1997] O.J. No. 4815, 75 A.C.W.S. (3d) 854 (Ont. C. A.) and Kris Persad v. TTC et. al., 2009 HRTO 325, 2009 HRTO 325 (Can LII). In the Daniel Beauchamp decisions, the Ontario Labour Relations Board (OLRB) found that in dealing with its jurisdiction over appeals under the Occupational Health and Safety Act, there was no language allowing for the extension of the timelines. In the result, despite sympathetic facts, which included a one day delay caused by solicitor inadvertence, the appeal was dismissed as untimely. In doing so, the OLRB also found that its broad power to control its own procedure did not give it jurisdiction to amend the timelines set by statute.

In the Divisional Court's decision in Leisureworld, affirmed on appeal, cited above, the Court found it to be unambiguous that when words relating to the power to extend time limits in provisions of collective agreements related to arbitration procedures were dropped from the Labour Relations Act, arbitrators lost jurisdiction to grant relief from time limits for referral to arbitration, as opposed to steps within the grievance procedure leading to the referral to arbitration. Counsel argues that the amendment to the regulation resulting in the absence of the provisions providing for the extension of time limits in Regulation 378/07 has similarly removed this Board’s jurisdiction to extend time lines. Without a statutory authority to extend the time limits, such as that in the Labour Relations Act or the Human Rights Code, an example of which is in the Persad case, cited above, counsel argues that there is no general equitable jurisdiction to extend time limits.

30Counsel also refers to Re Metropolitan Toronto Separate School Board and O.E.C.T.A. (Re) [1996] O.L.A.A. No. 593, 44 C.L.A.S. 239, to support the argument that the Board has no jurisdiction to amend time limits in the absence of provisions such as those in the Labour Relations Act. This was a case decided under the School Boards and Teachers Collective Bargaining Act, which did not grant the arbitration board the authority to relieve against the mandatory times limits, leading the arbitration board to dismiss the grievance.

31The complainant responds to the employer’s position that any disclosure at a meeting with a deputy minister does not meet the mandatory notice requirements under section 8 of Regulation 378/07 and that the complaint was not filed to the Board in a timely manner with the submission that he was not required to comply with the mandatory notice requirements or timelines, as his complaint was made under Part VI of the Act. Noting that Section 8 (1), concerning notice of proposal to file a complaint, does not apply with respect to a complaint under Part VI of the Act, Mr. Binda asked the Board to dismiss the employer’s argument and find that the case law cited is not applicable to this matter.

32As the Board found in Jackson, cited above, where a matter does not fit within Part VI, a complainant must follow the process set out in the regulation for the Board to be able to hear the matter. Since no notice had been given to the Deputy Minister in that case, the Board dismissed the complaint. In Muldoon, there had similarly been no notice, leading to the same result, although no issue related to Part VI had been raised. The crucial difference between the circumstances of this case and those in Jackson and Muldoon is that Mr. Binda has only asked the Board to consider this as a complaint of reprisal under Part VI, and has not asked that the Board consider it under its more general jurisdiction which remains subject to the procedural and timeliness provisions of Regulation 378/07. I have found above that this complaint is within the Board’s jurisdiction under Part VI. Subsections 8(2) and 9(2) of Regulation 378/07 provide that the Notice to the Deputy Minister and the requirement to allow a period of dispute resolution prior to referral to the Board are not applicable to a complaint under Part VI. Given those specific provisions, it is clear that, for the purposes of the viability of a complaint under Part VI, it is not necessary to consider the extent of compliance with subsections 8(1), 9(1) and 10(1) of the regulation, which provide for notice to the deputy Minister, a period of internal dispute resolution, and time lines for referral to the Board, which are computed with reference to section 9. In the result, it is not necessary to determine in this case whether notice under subsection 8(1) of the regulation can be given to the Deputy Minister verbally, or to address the employer’s argument concerning the lack of jurisdiction to extend the time lines. Moreover, I note that the Legislature did not insert any provision related to intent to avoid the timelines and procedural requirements under Regulation 378/07 when it directed in subsections 8(2) and 9(2) of Regulation 378/07, respectively, that subsections 8(1) and 9(1) did not apply and did not affect complaints under Part VI of the PSOA.

33With that said, it is perhaps important to be clear that, in the circumstances of this case, a finding that the matter may proceed under Part VI relates to the allegation of reprisal for the reporting of wrongdoing, and does not mean the Board will separately adjudicate any non-reprisal allegations, which would be subject to the provisions of Regulation 378/07. It is the allegation of reprisal for reporting of wrongdoing which must be the Board’s focus under Part VI. What evidence is relevant to that issue will be determined as necessary, if the matter proceeds to a hearing.

34At this juncture of the proceedings, the parties are directed to discuss whether any issues can be resolved without the necessity of a further hearing, in aid of which mediation may be scheduled.

35For the reasons set out above, the complaint may proceed under Part VI of the PSOA. The Board remains seized of any other issues necessary to the determination of this matter.

Dated at Toronto this 9th day of March 2012.

APPENDIX A

Excerpt from the Public Service of Ontario Act, PART VI

62. (1) The ethics executive for a public servant is determined as follows:

63. The ethics executive for a public servant employed under Part III who works in a ministry, other than in a minister’s office, is the deputy minister.

64. (1) In this Part,

“wrongdoing” means,

(a) a contravention by a public servant, a minister or parliamentary assistant of an Act of the Assembly or of the Parliament of Canada, or of a regulation made under such an Act,

(b) an act or omission of a public servant, a minister or parliamentary assistant that creates a grave danger to the life, health or safety of persons or to the environment, where the danger is unreasonable having regard to his or her duties, powers and functions and any other relevant circumstance,

(c) gross mismanagement by a public servant, a minister or parliamentary assistant in the work of the public service of Ontario,

(d) directing or counselling wrongdoing within the meaning of clauses (a) to (c) by a public servant, a minister or parliamentary assistant. 2006, c. 35, Sched. A, s. 108 (1).

110. This Part applies to wrongdoing associated with the public service of Ontario and its work. 2006, c. 35, Sched. A, s. 110.

111. The Integrity Commissioner and every person or body to whom a matter is referred under subsection 118 (2), 122 (2) or 123 (1) shall carry out their functions under this Part in a manner that,

(a) is fair and is as informal and expeditious as possible; and

(b) protects the identities of persons involved in disclosures of wrongdoing, including persons who make disclosures, witnesses and persons alleged to be responsible for wrongdoing except where the interests of fairness require that a person’s identity be disclosed to one or more persons. 2006, c. 35, Sched. A, s. 112.

116. A public servant or former public servant may disclose wrongdoing to the Integrity Commissioner if,

(a) the public servant or former public servant has reason to believe that it would not be appropriate to disclose the wrongdoing in accordance with the directives issued under section 115;

(b) the public servant or former public servant has already disclosed the wrongdoing in accordance with the directives issued under section 115 and has concerns that the matter is not being dealt with appropriately; or

(c) directives applying to the public servant or former public servant have not been issued under section 115. 2006, c. 35, Sched. A, s. 116.

Initial assessment by Integrity Commissioner

117. Where the Integrity Commissioner receives a disclosure of wrongdoing under section 116, the Commissioner shall refuse to deal with the disclosure if one or more of the following circumstances apply:

118. The subject matter of the disclosure is being dealt with by another person or body as a matter of law enforcement or in accordance with a procedure established under this or any other Act.

119. The subject matter of the disclosure is an employment or labour relations matter that could be dealt with through a dispute resolution mechanism, including a grievance procedure, established under this or any other Act, under a collective agreement or under an agreement of another kind.

120. The subject matter of the disclosure is a matter that could be dealt with under Part V of the Police Services Act.

121. The subject matter of the disclosure is the subject of,

i. a decision made in the exercise of an adjudicative function by a court or other tribunal under this or any other Act, or

ii. deliberations that have led or may lead to a decision made in the exercise of an adjudicative function by a court or other tribunal under this or any other Act.

5. The subject matter of the disclosure is related to the exercise of discretion by a prosecutor in relation to the prosecution of an offence.

6. The subject matter of the disclosure is not sufficiently important or the disclosure is frivolous, vexatious or made in bad faith.

7. There has been a substantial delay between the disclosure and the incidents that are the subject matter of the disclosure and because of the delay the proceeding would serve no useful purpose.

8. The subject matter of the disclosure relates solely to a public policy decision.

9. There is a valid reason, other than a circumstance described in paragraphs 1 to 8, for not proceeding with the disclosure. 2006, c. 35, Sched. A, s. 117.

10. (1) This section applies where the Integrity Commissioner receives a disclosure of wrongdoing under section 116 and does not refuse to deal with the disclosure under section 117. 2006, c. 35, Sched. A, s. 118 (1).

(2) The Integrity Commissioner shall determine, from among the persons mentioned in subsection (3), the person who, in the opinion of the Commissioner, is in the best position to investigate the disclosure and shall,

(a) provide the person with a written summary of the disclosure and any other information that the Commissioner has received in relation to the matter that the Commissioner considers may assist the person in dealing with the matter;

(b) direct the person to cause an investigation to be conducted into the subject matter of the disclosure; and

(c) direct the person to report the results of the investigation to the Commissioner. 2006, c. 35, Sched. A, s. 118 (2).

Report after referral

120. (1) A report from a person who has received a referral under subsection 118 (2) shall be in writing and shall include:

121. A summary of the subject matter of the disclosure.

122. A description of the steps taken in the investigation conducted by the person to whom the referral is made.

123. A summary of the evidence obtained during the investigation.

124. A statement of the findings resulting from the investigation of the disclosure, including a statement about any wrongdoing that was discovered.

125. A description of any corrective action that has been taken or that is proposed to be taken as a result of the investigation. 2006, c. 35, Sched. A, s. 120 (1).

No reprisals

139. (1) No person shall take a reprisal against a public servant because he or she has,

(a) sought advice about making a disclosure about wrongdoing in accordance with this Part;

(b) made a disclosure about wrongdoing in accordance with this Part;

(c) co-operated in an investigation or other process related to a disclosure of wrongdoing made in accordance with this Part;

(d) acted in compliance with this Part; or

(e) sought enforcement of this Part. 2006, c. 35, Sched. A, s. 139 (1).

(2) For the purposes of subsection (1), a reprisal is any measure taken against a public servant that adversely affects his or her employment or appointment and includes but is not limited to,

(a) ending or threatening to end a public servant’s employment or appointment;

(b) disciplining or suspending or threatening to discipline or suspend a public servant;

(c) imposing or threatening to impose a penalty related to the employment or appointment of a public servant;

(d) intimidating or coercing a public servant in relation to his or her employment or appointment. 2006, c. 35, Sched. A, s. 139 (2).

Complaint about reprisal

140. (1) A public servant described in subsection (2), (3) or (4) may complain under this section that he or she has suffered a reprisal prohibited by section 139. 2006, c. 35, Sched. A, s. 140 (1).

Public servant not subject to collective agreement

(3) A public servant employed under Part III who is not subject to the terms and conditions of a collective agreement may file the complaint with the Public Service Grievance Board. 2009, c. 33, Sched. 17, s. 10 (15).

Order

(8) If the Public Service Grievance Board, the Ontario Labour Relations Board or the Grievance Settlement Board determines, on the completion of an inquiry into a complaint filed under subsection (2), (3) or (4), that a reprisal has been taken in contravention of subsection 139 (1), the Board may make an order that it considers just and reasonable in the circumstances, directing the relevant ministry or public body or a person acting on behalf of the ministry or public body to do or refrain from doing anything in relation to the contravention. 2006, c. 35, Sched. A, s. 140 (8).

Same

(9) Without limiting the generality of subsection (8), an order under that subsection may direct that the ministry or public body, or a person acting on behalf of the ministry or public body, do one or more of the following:

1. Cease doing an act or acts complained of under subsection (1).

2. Take steps to rectify harm related to a complaint under subsection (1).

3. Reinstate the employment of a public servant whose employment was terminated.

4. Compensate the public servant for loss of any remuneration, including benefits. 2006, c. 35, Sched. A, s. 140 (9).

(10) Without limiting the generality of subsection (8), where the board is of the view that continuation of the employment relationship is inappropriate, the board may direct the ministry or public body, or person acting on behalf of the ministry or public body to terminate the public servant’s employment and provide compensation in lieu of reasonable notice of the termination. 2006, c. 35, Sched. A, s. 140 (10).

(11) A board may not make an order under subsection (8) for punitive damages or for costs. 2006, c. 35, Sched. A, s. 140 (11).

(12) Where a board has made a finding under subsection (8) that a reprisal has been taken, the board shall inform the Integrity Commissioner of the finding. 2006, c. 35, Sched. A, s. 140 (12).

Onus of proof

(13) On an inquiry into a complaint filed with the Public Service Grievance Board, the Ontario Labour Relations Board or the Grievance Settlement Board under this section, the burden of proof that an employer or a person acting on behalf of an employer did not act contrary to subsection 139 (1) lies on the employer or the person acting on behalf of the employer. 2006, c. 35, Sched. A, s. 140 (13).

Excerpts from Regulation 378/07 under The Public Service of Ontario Act:

4. (1) Subject to subsection (2), a public servant who is aggrieved about a working condition or about a term of his or her employment may file a complaint about the working condition or the term of employment with the Public Service Grievance Board,

(a) if the public servant is eligible under sections 5 and 7 to file such a complaint;

(b) if the public servant gives notice in accordance with section 8 of his or her proposal to file the complaint; and

(c) if the public servant complies with the filing requirements set out in section 10.

(2) The following matters cannot be the subject of a complaint about a working condition or about a term of employment:

1. The term or duration of the public servant's appointment to employment by the Crown.

2. The assignment of the public servant to a particular class of position.

3. A dismissal without cause under subsection 38 (1) of the Act or a matter relating to such a dismissal.

4. The evaluation of a public servant's performance or the method of evaluating his or her performance.

5. The compensation provided or denied to a public servant as a result of the evaluation of his or her performance.

Eligibility generally

5. (1)Subject to subsections (2) and (3), a public servant or other person is eligible to file a complaint if he or she was appointed by the Public Service Commission under subsection 32 (1) or (2) of the Act to employment by the Crown. O. Reg. 378/07, s. 5 (1).

(2) If any of the following circumstances existed at the material time, a public servant or other person is not eligible to file a complaint:

1. He or she was a member of a bargaining unit represented by a bargaining agent under the Crown Employees Collective Bargaining Act, 1993 or under the Ontario Provincial Police Collective Bargaining Act, 2006.

2. He or she was represented by the Ontario Crown Attorneys’ Association or the Association of Law Officers of the Crown under an agreement between the Crown and one or both of those Associations.

3. He or she was employed in a position that was classified under subsection 33 (1) of the Act as a term classified position.

4. He or she was employed for a fixed term,

i. on a non-recurring project,

ii. in a professional or other special capacity, or

iii. on a temporary work assignment arranged by the Public Service Commission in accordance with a program for providing temporary help.

5. He or she was employed for a fixed term for fewer than 14 hours per week, employed for a fixed term for fewer than nine full days in four consecutive weeks or employed for a fixed term on an irregular or on-call basis.

6. He or she was employed for a fixed term during his or her regular school, college or university vacation period or was employed for a fixed term under a co-operative educational training program. O. Reg. 378/07, s. 5 (2).

(3) Subsections (1) and (2) do not affect the right of a public servant or other person to file a complaint under Part V of the Act (Political Activity) or a complaint under Part VI of the Act (Disclosing and Investigating Wrongdoing). O. Reg. 378/07, s. 5 (3).

Restrictions, complaint about a working condition or a term of employment

7. (1) A public servant is eligible to file a complaint about a working condition or a term of employment only if he or she had been employed continuously for at least six months before the deadline for giving notice in accordance with section 8 of his or her proposal to file the complaint.

O. Reg. 378/07, s. 7 (1).

Filing a Complaint

Notice of proposal to file a complaint

8. (1) A person who proposes to file a complaint shall give notice of the proposal to the following person or entity:

9. A complainant who, at the material time, worked in a ministry shall give the notice to his or her deputy minister.

10. A complainant who, at the material time, worked in a Commission public body shall give the notice to the chair of the Public Service Commission. O. Reg. 378/07, s. 8 (1).

(2) Subsection (1) does not apply with respect to a complaint under Part V of the Act (Political Activity) or a complaint under Part VI of the Act (Disclosing and Investigating Wrongdoing). O. Reg. 378/07, s. 8 (2).

(3) The notice must set out the reasons for the complaint. O. Reg. 378/07, s. 8 (3).

(4) The notice must be given within the following period:

1. For a complaint about dismissal for cause, within 14 days after the complainant receives notice of the dismissal.

2. For a complaint about a disciplinary measure, within 14 days after the complainant receives notice of the imposition of the disciplinary measure.

3. For a complaint about a working condition or a term of employment, within 14 days after the complainant becomes aware of the working condition or term of employment giving rise to the complaint. O. Reg. 378/07, s. 8 (4).

Period for dispute resolution

9. (1) A complainant is not entitled to file a complaint with the Public Service Grievance Board until expiry of the period provided under this section for dispute resolution. O. Reg. 378/07, s. 9 (1).

(2) Subsection (1) does not affect the right of a public servant or other person to file a complaint under Part V of the Act (Political Activity) or a complaint under Part VI of the Act (Disclosing and Investigating Wrongdoing). O. Reg. 378/07, s. 9 (2).

(3) If the complainant was required to give a deputy minister notice of the proposal to make the complaint, and if the deputy minister or his or her delegate meets with the complainant within 30 days after the deputy minister receives the notice, the period provided for dispute resolution expires on the earlier of,

(a) the day that is 30 days after the meeting; or

(b) the day on which the deputy minister gives written notice to the complainant of his or her decision about the proposed complaint.

O. Reg. 378/07, s. 9 (3).

(4) If the complainant was required to give the chair of the Public Service Commission notice of the proposal to make the complaint, and if the chair or his or her delegate meets with the complainant within 30 days after the chair receives the notice, the period provided for dispute resolution expires on the earlier of,

(a) the day that is 30 days after the meeting; or

(b) the day on which the chair gives written notice to the complainant of his or her decision about the proposed complaint. O. Reg. 378/07, s. 9 (4).

(5) If the deputy minister or chair of the Public Service Commission, as the case may be, or his or her delegate does not meet with the complainant within 30 days after receiving the notice, the period provided for dispute resolution expires 30 days after the notice was given to the deputy minister or chair. O. Reg. 378/07, s. 9 (5).

Filing a complaint

10. (1) Within 14 days after the expiry of the period, if any, provided for dispute resolution under section 9, the complainant may file the complaint with the Public Service Grievance Board by delivering it to the chair of the Board. O. Reg. 378/07, s. 10 (1).

(2) The complaint must set out the reasons for the complaint and must include the notice of the proposal, if any, to make the complaint and such other information and documents as the Board may specify. O. Reg. 378/07, s. 10 (2).

Excerpt from Regulation 977, under the Public Service Act, now superseded

54. The Board or a Classification Rating committee may, of its own motion,

(a) abridge the procedure set out in this Part and hear the grievance at any time under section 48: or

(b) extend the time limits specified in this Part, RO 1980, Reg, 881, s. 61.

Excerpt from the Board’s rules.

3(1) An application to the Board shall be delivered to the Board in Form 1 and must include a copy of the complaint that was filed with the deputy minister.