P-2013-0884

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Martin Ois

Complainant

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Kathleen G. O’Neil

Vice-Chair

FOR THE COMPLAINANT

John Hosegrove

FOR THE EMPLOYER

Roslyn Baichoo Treasury Board Secretariat Legal Services Branch Counsel

SUBMISSIONS

September 18, 2014

Decision

1This decision deals with a preliminary objection raised by the employer in regards to the complaint of Operational Manager Martin Ois in which he contests a seven day suspension he received for not informing senior management of an incident related to a food spillage soon enough. He was advised of the discipline on April 16, 2013, and forwarded a notice of proposal to file a complaint to his Deputy Minister dated May 20, 2013. The employer asks that the complaint be dismissed, as notice to the Deputy Minister was not given within the 14 day time period allowed by regulation. The complainant asks that his complaint be allowed to proceed, as he did his best to follow the timelines and he feels he was treated unfairly.

The issues and their factual context

2On a motion such as this, where there is any dispute about the facts, the Board assumes that the facts asserted by the complainant are true and provable, although if the matter went on to a full hearing, the evidence might establish otherwise. In this particular case, there is not much dispute about the facts; it is the legal conclusions flowing from them over which the parties differ. Essentially there was a food spillage in the kitchen of the detention centre in preparation for a lunch related to a special event involving staff and guests. Some of the spilled food was returned to the food cart and served to the participants, rather than being discarded as it should have been. This was observed on video, and reported to Mr. Ois, and then by him to his superintendent, but not in time to prevent the food being served. Mr. Ois was not involved in handling the food, but was a manager on duty at the time and received reports from Correctional Officers about the incident, and is alleged to have failed to report it in a timely and complete manner. Mr. Ois asserts that he did respond in a timely manner, but had not finished the necessary investigation before the food was served.

3Mr. Ois believes that both the suspension he received for his involvement in the above incident, and the process which lead to it, were unfair. He states that one of the senior administrators who was participating in the lunch where the spilled food was served presided over his allegation meeting and gave him his suspension, which he sees as a conflict of interest. As well, he does not believe he was given adequate disclosure or time to prepare for the allegation meeting prior to the employer’s deciding on discipline. As this decision deals only with preliminary procedural issues, the Board makes no findings about whether the discipline was justified, at all, or in terms of its length, whether Mr. Ois received adequate disclosure prior to his allegation meeting, or whether it was appropriate that a person potentially involved in eating the spilled food was also involved in the allegation meeting and deciding on the level of discipline.

4There are two related issues to be decided to determine whether the matter should be listed for hearing on its merits: a) Was the grievance filed in time as a terms and conditions complaint under Regulation 378/07 under the Public Service of Ontario Act?

b) If not, should the matter proceed as a complaint of reprisal for reporting of wrongdoing under Part VI of the same Act?

Excerpts from Statute, Regulations and the Rules of the Board

5Relevant provisions of statute, regulations and Rules of the Board are attached as Appendix A for ease of reference.

Considerations and Conclusions

a) Was the grievance filed in time as a terms and conditions complaint under Regulation 378/07?

6The issue to be decided in regards to timeliness is whether the complaint of Mr. Ois is one that the Board is permitted to hear. The Board only has the powers granted by the Public Service of Ontario Act, and regulations made under that legislation, such as Regulation 378/07. That regulation sets out a very specific set of time lines or “windows” of time in which steps must be taken to file complaints about discipline or terms and conditions of employment. In addition to complaints subject to the timelines set out in that regulation, the Board has jurisdiction over complaints concerning reprisals for political activity and disclosure of wrongdoing, as set out in Parts V and VI of the Public Service of Ontario Act. The Board’s rules provide different forms for these two types of complaints.

7The complaint here in question was filed on the form for grieving discipline or terms and conditions of employment. Such a complaint may be filed with the Board if the preconditions referred to in s. 4 of Regulation 378/07 are fulfilled. One of these is a fourteen day time limit for giving notice to the Deputy Minister, found in s. 8(4), para. 2 of that regulation. The fourteen days is counted from the date of notice of the discipline. Mr. Ois received notice of the discipline on April 16, 2013, and then a revised notice on April 18, 2013. It is clear that the Notice of Intention to file a complaint was filed more than fourteen days after April 18, by a letter dated May 20, and received by the Deputy Minister on May 23.

8The complainant submitted that he followed the timelines to the best of his ability, considering that he is not in a union and had no representative to consult with at the time the suspension letters were given to him. Further, in his 28 years of service he had never filed a grievance and had no frame of reference to work from. Nonetheless, he submits that he did follow proper protocol in writing to the Deputy Minister asking to resolve the matter failing which he would proceed with a grievance, and there was no attempt to delay any proceedings.

9As well, Mr. Ois submits that the employer did not express any concern about timelines between the receipt of his letter by the Deputy Minister on May 23 and the meeting with the Deputy Minister’s delegate on June 10, 2013 to discuss the matter. It was not until after he refused to accept an offer of settlement in the June 10 meeting that the timeline issue was mentioned.

10Further, Mr. Ois finds the timeliness objection to be an example of the employer’s claiming that he has not followed the rules when the employer itself did not follow its own rules. This is a reference to his allegation of conflict of interest mentioned above.

11In all the circumstances, Mr. Ois asks that the Board allow the grievance to be heard and dealt with in due process.

12By contrast, the employer argues that the Board no longer has the power to extend time limits, which would be required to allow the complaint to proceed.

13Prior to the current regulation, during the period when Regulation 977, set out in the Appendix to this decision, was in effect, the Board had the discretionary power under s. 54 of that Regulation to extend such time limits, and exercised that discretion in appropriate cases. What was considered appropriate depended on the facts, including whether the delay was not too extensive, there were reasonable grounds for the delay and/or no prejudice to the other party. The situation changed when the current regulation was put in place without the equivalent power.

14The Board has accepted in St. Amant v. Ontario (Ministry of Community Safety and Correctional Services), a decision of then Chair Carter dated January 31, 2013, now reported at 2013 CanLII 4673 (ON PSGB), that the current wording of the regulation means that compliance with the time limits set out in the regulation is a precondition to the Board’s assuming jurisdiction over a case. Further, the Board found that it has no power to relieve against or extend those times limits, given the removal of that power from the wording of the current regulation. This is consistent with the case of 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.). In that case, 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 a statute, in that case, the Labour Relations Act, arbitrators lost the right to extend those time limits. In a similar fashion, this Board no longer has the power to extend time limits set out in Regulation 378/07, given the removal of the wording extending that power from the governing regulation.

15This lack of power to relieve against the time limits means that the reasons for not meeting the time lines, and the timing of the employer’s objection are not matters that the Board can rely on to extend the time lines.

16Therefore, the complaint is not eligible to go forward as a terms and condition complaint because it was filed late, as it was filed beyond the fourteen day time limit and the Board no longer has the authority to extend the time limits.

b) Should the matter proceed as a complaint of reprisal for reporting of wrongdoing?

17Given that Mr. Ois made reference in his complaint to having been disciplined for reporting wrongdoing, the Board asked for submissions on whether the matter should proceed on that basis. This is because s. 8(2) of Regulation 378/07 provides that the time lines for giving notice to the Deputy Minister do 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). Although Mr. Ois filed his complaint with this Board on a form referring to discipline and terms and conditions of employment, he included in it the statement that he had been disciplined for reporting the wrongdoing of a senior administrator officer to his immediate supervisor, contrary to s. 103(2) of the Public Service of Ontario Act, set out in the appendix to this decision.

18The section Mr. Ois mentions, s. 103(2), is one of two sections of the Act prohibiting reprisal. It is the first, dealing with reprisals for political activity, and is included in Part V of the Act. Mr. Ois made clear in his written submissions that political activity on his part was not involved in the factual situation which gave rise to his complaint, so I am persuaded that there is no basis in the material to find that the discipline could be a reprisal for political activity.

19The second prohibition of reprisal relates to disclosures of wrongdoing and can be found in s. 139, an element of Part VI of the Act. Although the section of the Public Service of Ontario Act cited in Mr. Ois’ complaint refers to political activity, the language he used referred to wrongdoing, so the Board has considered whether the complaint should be considered to be about a reprisal for disclosing wrongdoing prohibited by s. 139 of Part VI of the Public Service of Ontario Act. The question to be determined is whether this complaint is exempted from the fourteen day notice requirements for a terms and conditions complaint because of Mr. Ois’ statement that the discipline was for reporting the wrongdoing of a senior administrative officer.

20Mr. Ois states that he received information from Correctional Officers and acted upon it by conducting an investigation which revealed wrongdoing, referring to the improper handling of the food spillage by senior managers who were involved. He says he provided all the relevant information in his occurrence report to his superintendent, who has a duty to investigate and report to a higher authority. He is of the view that the employer did not follow the Disclosure of Wrongdoing Directive and is guilty of gross mismanagement of the situation. He alleges that his managers are deflecting this by suspending him, and that the discipline was therefore a reprisal for doing his job. He further states that the employer did not act upon the information concerning wrongdoing because they were a part of it, adding that he did notify the Deputy Minister that wrongdoing existed. As well, he clarified in his final submissions that he had not stated that the superintendent did not act.

21By contrast, the employer takes the position that the anti-reprisal provisions are not applicable and the complaint should be considered a complaint of the usual variety to which the time lines in section 8(4) of Regulation 378/07 apply. The Employer’s reasons for this position include that the Complaint was not filed on the form for a reprisal complaint, as provided in section 4(1) of the Rules of the Board. As well, the employer asserts that what the complainant refers to as wrongdoing is not something that fits within the specific definition of wrongdoing in s. 108 of the Public Service of Ontario Act, and that the filing of occurrence reports and participation in the investigation was not a “disclosure of wrongdoing” as that term is defined in the Act.

22The employer also argues that, even assuming, without admitting, that the incident about which Mr. Ois wrote occurrence reports involved wrongdoing, the actions of the complainant were not a disclosure of the wrongdoing. Counsel submits that his filing of occurrence reports and being interviewed in the investigation regarding the Incident was mandatory in the course of his duties at a correctional facility, rather than a disclosure initiative arising from the complainant’s own volition and conscience. Counsel submits that to accept the completion of regular job duties as a disclosure of wrongdoing would cast an unnecessarily broad exception to the time line provisions, effectively defeating their purpose.

23Further, the employer argues that the reprisal sections of the Act require that the seeking of advice, making disclosure, or participating in an investigation be in relation to a disclosure that was made “in accordance” with Part VI. In other words, for any revelation of information to be considered disclosure under that section, the revelation must be done by way of the procedure prescribed by Part VI of the Public Service of Ontario Act. This is elaborated on in s. 114, which states that where a public servant has reason to believe that there has been wrongdoing, he may disclose the wrongdoing in accordance with the procedures established under section 115. Section 115 empowers the Public Service Commission to establish the procedures to deal with disclosures of wrongdoing by directive. The Disclosure of Wrongdoing Directive lays out these procedures and provides that disclosures of wrongdoing be made either to the employee’s Ethics Executive or to the Integrity Commissioner. The Ethics Executive for the complainant is the Deputy Minister.

24The employer emphasizes that the occurrence reports and interview were not prepared for the Ethics Executive or the Integrity Commissioner, but for the employer’s own use in managing the workplace. In the employer’s view, these actions were clearly not done in accordance with the Disclosure of Wrongdoing Directive and cannot be taken as disclosures of wrongdoing as contemplated by the Public Service of Ontario Act. In any case, the only contact with the Deputy Minister was after the discipline, when Mr. Ois sent notice of his proposal to file a complaint contesting the discipline to the Deputy Minister, a requirement of a terms and conditions grievance, rather than of reporting of wrongdoing. In the employer’s view, the notice sent to the Deputy Minister concerned the complainant’s discipline, rather than wrongdoing under the Act.

25Further, employer counsel submits that although s. 139(1) also prohibits reprisal for acting in compliance or seeking the enforcement of Part VI, neither provision is relevant to the current case because the complainant did not seek enforcement of the Public Service of Ontario Act until the current complaint, which was after the discipline.

26In the circumstances, the employer invites the conclusion that the complainant did not engage in any of the activities listed in ss. 103(1) or 139(1), and thus the discipline fails to engage s. 8(2) of Regulation 378/07. Therefore, the employer submits that the complaint about the discipline is not exempt from the time lines.

27In the alternative, it is the employer’s position that, even if the Board finds that the complainant had engaged in political activity or disclosed a wrongdoing, s. 8(2) of Regulation 378/07 should not apply where the discipline was properly within management rights and not a form of reprisal. In this regard, the employer observes that, although the complainant claims that he was disciplined because he had reported the involvement of senior managers in the incident, the occurrence reports filed by the complainant on February 22 and 25, 2013 did not name these senior managers. Further, the individuals in question had no role in deciding the discipline given to Mr. Ois.

28Employer counsel submits that, in any event, the complainant was not disciplined for reporting senior managers, but for failing to alert senior management before the spilled food was served and for filing an inaccurate and incomplete report. These actions were clearly identified in the disciplinary letter to the Complainant dated April 18, 2013. Further, three Correctional Officers filed occurrence reports and were interviewed in the investigation process following the food spillage incident but were not disciplined. Counsel asserts that this is because the investigation revealed that these Correctional Officers, unlike the Complainant, did not act improperly in fulfilling their responsibilities.

29The Employer submits that where there is no prima facie case of reprisal, a complaint cannot be properly brought under Parts V or VI of the Public Service of Ontario Act. As a result, s. 8(2) of Regulation 378/07 should not be engaged. The employer is concerned that allowing the complaint to proceed simply because of an allegation of reprisal, which, given the context, does not amount to a violation of either Parts V or VI, would render the timeline provisions of the Public Service of Ontario Act virtually useless. Counsel submits that this would open the floodgates for complaints and cannot have been the Legislature’s intent. There must be more than a non-contextualized allegation of reprisal to engage this Board’s jurisdiction, in the employer’s view.

30Employer counsel argues in the further alternative, that if the Board finds that the complaint is properly considered to have been brought under Parts V or VI of the Act, then the Board’s jurisdiction to hear the issue should be restricted to the allegations of reprisal. Any other matters alleged in the complaint must be relegated to the procedure as prescribed by Regulation 378/07. Counsel relies on the decision of the Board in Binda v Ontario (Ministry of Environment), PSGB #P-2011-2193 (O'Neil) at para 33, now reported as 2011 CanLII 93306 (ON PSGB).

31In the employer’s view, the circumstances do not involve the complainant’s involvement in political activity, the disclosure of a wrongdoing or a reprisal, leaving the Board without jurisdiction to entertain the complaint under the anti-reprisal provisions.

32The question to be answered in this part of the case is whether there is a viable or prima facie case of reprisal for the disclosure of wrongdoing that should be allowed to proceed further, despite the finding that Mr. Ois’ complaint is ineligible to proceed as a terms and conditions grievance because it was filed outside the prescribed timelines.

33Part VI of the Act is often referred to as the “whistleblowing” provisions. They are intended to protect public servants who disclose serious wrongdoing to their Ethics Executive or Integrity Commissioner from reprisals for doing so. In order to amount to a viable reprisal complaint under Part VI, the complainant must allege sufficient facts and circumstances that could lead to a finding that a negative job consequence was a punishment or reprisal for disclosing wrongdoing of the kind defined there, and in accordance with its disclosure provisions, i.e. to his Ethics Executive (the Deputy Minister) or the Integrity Commissioner. I have carefully reviewed the facts and arguments, and find that, even assuming everything the complainant alleges to be true and provable, there is not a viable case for a finding of a reprisal prohibited by section 139. I am not persuaded that the alleged facts establish that Mr. Ois was disclosing wrongdoing of the kind described in Part VI when he wrote his occurrence reports. Nor do they establish that he made any disclosure in accordance with Part VI before he was disciplined.

34The definition of wrongdoing in Part VI makes clear that it is not aimed at all behaviour which is “wrong” in the sense of not being done correctly. The wrongdoing of which Part VI is speaking is at the high level of a breach of statute, something creating a grave and unreasonable danger or constituting gross mismanagement in the work of the public service, described 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).

35I have reviewed the text of Mr. Ois’ occurrence reports in evidence, which are where he says the reporting of wrongdoing occurred, and I find no indication in them that he actually was reporting any of the categories set out above.

36Mr. Ois filed three occurrence reports. The one filed on the day of the event, a Friday, states, in summary, that Mr. Ois was paged by Correctional Officers viewing video output in the Main Control Room, to tell him that there had been a spillage of food, which had been put back into the serving tray. After failing to find evidence in the kitchen of a recent clean-up of a large food spill, he observed that the food service had already begun. After speaking to the Main Control Room officers again, he then reported what had occurred to his superintendent.

37Mr. Ois’ second and third occurrence reports were submitted to his superintendent on the Monday after the incident the Friday before. The second report details a phone conversation with a Correctional Officer which took place the day after the food spillage in which questions had been raised as to why it took Mr. Ois so long to report the incident, and mentions his request for a further report from one of the Correctional Officers. In his third occurrence report he included more detail from the day of the spillage, which he reports having forgotten to include in the first. These include a more detailed sequence of time, and the names of the senior managers whom the Correctional Officers had viewed in the video as being present at the time of the food spillage, as well as an account of a conversation with the senior manager who had been seen putting the food back in the containers. He writes that when the manager acknowledged this, Mr. Ois said he couldn’t lie, and pointed to the cameras. Although in ordinary parlance, the inclusion of these details in his occurrence reports may well be considered reporting something which had been done wrong, I do not find it to refer to the categories or level of wrongdoing defined in s. 108 of the Act. Neither the content of the reports or the context indicates that Mr. Ois intended the occurrence reports to allege breach of statute, the creation of grave danger, or gross mismanagement in the work of the public service of Ontario.

38Further, and perhaps more importantly for this decision, there is no evidence that Mr. Ois ever reported the incident to his Ethics Executive or the Integrity Commissioner, in such a way that it could be reasonably construed as falling within any of the categories set out in s. 108, as would have been necessary for the Board to find that he had disclosed wrongdoing in accordance with Part VI of the Act.

39The only evidence of any contact with Mr. Ois’ Ethics Executive, the Deputy Minister, is the notice of this complaint, and there is no suggestion that there was any contact with the Integrity Commissioner. Mr. Ois submitted that he mentioned the wrongdoing in the notice to the Deputy Minister. The reference to wrongdoing in that notice is in the sentence which introduces the May 20, 2013 letter: “On 16 April 2013 I was disciplined for reporting the wrongdoing of a superior officer to my immediate supervisor, contrary to s. 103(2) (b) of the Public Service of Ontario Act.” However, again, there is no reference to any of the categories of wrongdoing set out in s. 108 of the Act, set out above, or even any account of what he said was done wrong in the more ordinary sense of the word. Nor is there any indication that Mr. Ois thought that reporting to his superintendent by way of occurrence reports was effectively reporting to his Ethics Executive.

40Also important to this decision is the fact that this contact with the Deputy Minister was filed well after the discipline had been given to him. At the risk of stating the obvious, discipline received before the reporting to the Deputy Minister cannot be a reprisal for reporting to the Deputy Minister.

41In his written submissions, Mr. Ois did mention gross mismanagement, words from one of the categories in s. 108 of the Act, This was however not before he was disciplined, but about 18 months later in September 2014 after the Board had invited submissions on the reprisal allegation. Even then, it is not an allegation that the food spill incident amounted to gross mismanagement in the work of the public service. Rather, he alleges that senior management grossly mismanaged the situation by improperly disciplining him after he did his job in providing occurrence reports.

42The above findings are a sufficient basis to find that Mr. Ois’ complaint lacks the necessary elements to establish a viable case of reprisal for disclosure of wrongdoing. However, it is also of note that there is an insufficient factual basis for a finding that the motivation for the discipline was the fact that Mr. Ois had reported the food spillage incident, or the involvement of senior managers, rather than the stated reason for the discipline. Even if Mr. Ois had reported wrongdoing of the kind defined in s. 108 to his Ethics Executive before he received discipline, to have a successful complaint, he would have to show that there was a viable basis in the alleged facts for the Board to find that the true reason for the discipline was not the stated reason.

43The letter of discipline states that the reason for the discipline is that he did not report the incident in a timely enough manner, and that the first reporting was not complete. This stated reason does not appear on its face to be aimed at the fact that Mr. Ois reported the incident, but to be holding him to a standard of reporting more quickly and completely. In order to find that this was nonetheless actually discipline for reporting, there would have to be facts alleged to establish that the employer was pretending to discipline for not reporting fully and quickly enough, when really the motivation was to punish him for having reported the incident at all.

44The only factual allegation made about the motivation of the person who gave out the discipline refers to the facts related to Mr. Ois’ issue about a conflict of interest - that the manager was one of the people who participated in the lunch where the spilled food was served. Whether or not that manager was in a position of conflict of interest, I do not find participation in the lunch to be a fact that could form a sufficient logical basis for a conclusion that the real reason for the discipline was that the incident was reported at all, rather than that the reporting did not happen quickly enough to prevent the serving of the spilled food.

45I have also considered Mr. Ois’ more general allegation that senior management was trying to deflect blame for the incident away from themselves and onto Mr. Ois. I do not find the alleged facts to form an adequate factual basis for that conclusion either, or that such a conclusion would advance Mr. Ois’ allegation that the discipline was actually in reprisal for having reported the matter at all. For instance, there is no allegation that the senior administrators who were involved in deciding on the discipline bore any responsibility for the serving of the spilled food.

46As well, Mr. Ois argues that the employer did not act properly upon the information concerning wrongdoing, as senior management did not follow the Disclosure of Wrongdoing Directive and are also deflecting this by giving discipline to the Complainant. As already stated above, there was nothing in Mr. Ois’ reporting about the incident that reasonably communicated that he was reporting wrongdoing of the kind defined in s. 108, which might have triggered the use of that Directive. Nor is there any indication in the facts asserted that could form the basis for a finding that senior management independently saw the spillage incident as the kind of wrongdoing which should be dealt with under the Disclosure of Wrongdoing Directive. I note as well that the Directive makes clear that it is not intended to duplicate or replace procedures already in place for employment dispute resolution, such as grievance procedures.

47To summarize, In order to establish a viable case for a reprisal for disclosure of wrongdoing under s. 108 of the Public Service of Ontario Act, there would need to be a report of wrongdoing of the kind set out there, in accordance with Part VI of the Act, meaning to the Deputy Minister, Mr. Ois’ Ethics Executive, or the Integrity Commissioner, and then subsequent discipline motivated by that reporting. For the reasons set out above, I do not find a viable basis in the asserted facts and documents before me for any of those elements.

48In the circumstances, the complaint is dismissed because it is not timely as a terms and conditions grievance, and it does not establish a prima facie or viable case of a reprisal for reporting wrongdoing under Part VI of the Act, which would be exempt from the time lines set out in Regulation 378/07.

Dated at Toronto, Ontario this 13th day of November 2014.

APPENDIX A

Excerpt 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.

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.

(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).

(bolding added)

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

Applications to the Board

Form 1- Complaint under Regulation 378/07 Dismissal for Cause/ Discipline/Working Conditions and Terms of Employment

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.

(2) The Board shall give a copy of the application to the deputy minister concerned.

2

(3) The Employer shall deliver to the Board in Form 2 its response to the application no later than 20 days prior to the first scheduled hearing date.

Form 1a –Complaint under Part V of the Act Political Activity and/or Part VI of the Act Disclosing and Investigating Wrongdoing

4. (1) An application to the Board shall be delivered to the Board in Form 1a.

(2) The Board shall give a copy of the application to the deputy minister concerned.

(3) The Employer shall deliver to the Board in Form 2 its response to the application no later than 20 days prior to the first scheduled hearing date.

Excerpts from The Public Service of Ontario Act:

Ethics executive for public servants

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.

Protection from Reprisals

No reprisals

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

(a) engaged in political activity in accordance with this Part or the regulations; or

(b) exercised his or her right under this Part to decline to engage in political activity. 2006, c. 35, Sched. A, s. 103 (1).

Same

(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. 103 (1).

Complaint about reprisal, discipline

104. (1) A public servant described in subsection (2), (3) or (4) may complain under this section that he or she,

(a) has suffered a reprisal prohibited by section 103; or

(b) is disciplined for a contravention of this Part or a direction or regulation under this Part. 2006, c. 35, Sched. A, s. 104 (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 (14).

PART VI

DISCLOSING AND INVESTIGATING WRONGDOING

Interpretation

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).

Disclosure, procedures

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; and

(b) a former public servant who worked in a ministry immediately before ceasing to be a public servant. 2006, c. 35, Sched. A, s. 115 (1).

(3) Without limiting the generality of subsections (1) and (2), directives issued under those subsections may,

(a) establish procedures by which a public servant or former public servant may make disclosures of wrongdoing, including directions as to the persons to whom disclosures may be made;

(b) establish procedures to protect the identities of persons involved in the disclosure process, including persons who make disclosures, witnesses and persons alleged to be responsible for wrongdoing; and

(c) provide for exceptions to be made to procedures described in clause (b) where the interests of fairness require that a person’s identity be disclosed to one or more persons. 2006, c. 35, Sched. A, s. 115 (3).

Same

(4) Directives issued under this section may be general or particular in their application. 2006, c. 35, Sched. A, s. 115 (4).

Interpretation

Protection from Reprisals

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).

Same

(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).

Excerpts from the Public Service Commission, Disclosure of Wrongdoing Directive, 2007– part of employer submissions

7.2 Making a Disclosure

Employees can make a disclosure of wrongdoing to their ethics executive.

Employees also have the option to disclose directly to the IC [Integrity Commissioner] (see Appendix A) if the employee:

• believes that it would not be appropriate to disclose internally, or

• has already disclosed internally and has concerns that the matter has not been appropriately dealt with.

It is important to note that there must be enough information so that an assessment of the disclosure can determine the best course of action. If a disclosure does not have enough information, the employee making the disclosure (the discloser) may be contacted.

The PSOA also sets out three types of information that cannot be divulged, either in a disclosure or in any process addressing the disclosure. These exceptions are well recognized in law:

• information that is subject to solicitor-client privilege;

• information that would reveal the substance of the deliberations of Cabinet (Cabinet privilege); or

• anything that is prepared by or for counsel for a ministry or public body for use in giving legal advice or in regards to litigation.