PSGB#2010-0759, P-2010-0760

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Doyle

Complainant

• and -

The Crown in Right of Ontario (Ministry of Municipal Affairs)

Employer

BEFORE

Kathleen G. O’Neil

Chair

FOR THE COMPLAINANT

Victor Doyle

FOR THE EMPLOYER

Roslyn Baichoo Treasury Board Secretariat Legal Services Branch Counsel

HEARING CONFERENCE CALL COMPLETED SUBMISSIONS

January 16, 17, 2017 February 24, 2017 April 25, 2017

Decision

1This decision deals primarily with preliminary objections raised by the employer in respect of the complaints of Victor Doyle, a senior planner with the Ministry of Municipal Affairs and Housing. The complaints arise from a series of events leading up to and following a finding by his Ethics Executive on February 8, 2010 that a conflict of interest had arisen from his public dissemination of submissions to a government consultation on land use policy in Simcoe County. A reassignment followed, as well as a direction that he seek his Deputy Minister’s direction before publicly expressing his views on land use planning. Mr. Doyle objects to the findings against him and his reassignment, claiming reprisal for the reporting of wrong doing as well.

2The employer asks that the complaints be dismissed without a hearing on their merits. There are two complaints, one in reference to terms and conditions of employment and discipline, filed on Form 1, and the other in respect of reprisal for the disclosure of wrongdoing, filed on Form 1A. For the Form 1 complaint, the basis of the preliminary objection is that it was not referred to the Board within the 14 day time period allowed by regulation after the close of the prescribed dispute resolution period and that the Board has no jurisdiction over the issuing of a declaration of conflict of interest. For the complaint filed on Form 1A, the employer’s objection is that the complaint of reprisal is not viable as the actions said to constitute a reprisal occurred prior to the disclosure of wrongdoing. The complainant asks that his complaints be allowed to proceed as the matters involved are of very high public interest, submitting that the employer’s motion is a blatant attempt to avoid accountability. Further, as the employer agreed to several years of adjournments while an investigation by the Integrity Commissioner into related events proceeded, Mr. Doyle is of the view that the time for preliminary motions is long past.

3Issues relating to requests for disclosure by two newspapers are dealt with in this decision as well. These raise issues about the appropriate use of information potentially relevant to the dispute, but which raise privacy issues, mostly in respect of the investigation by the Integrity Commissioner of events which are also relevant to these complaints.

4An earlier procedural ruling as to transcribing the hearing is also recorded below.

Factual context

5On a motion such as this, the Board assumes that the facts asserted by the complainant concerning the merits of the complaint 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 asserted by the complainant and set out in summary form below; it is largely the legal conclusions flowing from them over which the parties differ. The largest disagreement between the parties centres on the question of whether the restrictions placed on the scope of Mr. Doyle’s work and his reassignment after the finding of conflict of interest by his Ethics Executive were disciplinary.

6Mr. Doyle is a registered professional planner who served for more than 25 years as the leading Ministry planner for the most populous area of Ontario, known as the Greater Golden Horseshoe. This area, which centres on Toronto, lies at the western end of Lake Ontario, stretching south to Lake Erie and north to Georgian Bay. He was the lead planner of significant land use initiatives, including the Greenbelt Plan, and designer of the Oak Ridges Moraine Conservation Plan and Growth Plan and the Lake Simcoe Protection Plan. As well, he led the establishment of the Municipal Services office – Central Ontario Community Planning unit. As its Manager, he was responsible for overseeing the approval of municipal official plan proposals to convert farmland for urban expansion purposes, including leading provincial opposition to various urban expansion proposals in major hearings before the Ontario Municipal Board.

7In his work, Mr. Doyle identified what he described as “a serious disconnect between land use approvals that had occurred in Simcoe County and the ability to provide sewer and water servicing” and in particular the lack of capacity in Lake Simcoe to assimilate the sewage effluent from this approved growth. As a result of this, his office led an award winning initiative known as the Inter-Governmental Action Plan for Simcoe, Barrie and Orillia, which led to the Lake Simcoe Protection Plan in June 2009.

8Key to this dispute is the fact that, beginning in 2003, despite the above background and duties, and no issue being taken with his work performance, Mr. Doyle was restricted by Ministry executives from working on a single file in the County of Simcoe, a restriction to which he objected without success. From August 2004 to May 2005, he was seconded to work on the Greenbelt Plan, and upon his return, assumed all his former geographic responsibility except for the same single file. In December 2005, he was further restricted from conducting any of his assigned responsibilities for all of Simcoe County, despite retaining all responsibilities for the rest of the central planning area of the province. Despite his contesting these further restrictions, they remained, but he was still asked to prepare draft witness statements for an Ontario Municipal Board hearing where the Ministry would be opposing the single file, together with another major file in Simcoe County.

9In June 2009, the Ministry of Public Infrastructure and Renewal released a discussion paper entitled “Simcoe Area: Strategic Vision for Growth (the “Simcoe Strategy”) and invited comments from the public as part of a formal consultation process. On September 26, 2009, Mr. Doyle made a submission on the “Simcoe Strategy” as a private citizen in response to this request for public input. After the Toronto Star ran several articles in December 2009 on the submission he had made, Mr. Doyle met with senior executives of the Ministry at their request to discuss them. He advised that he had made the submission as a private citizen given that he had been restricted from working in Simcoe County in conducting his responsibilities as Manager of Community Planning and Development for Central Ontario, and thus was availing himself of his rights to provide input in response to a public request by the Government of Ontario for comments. He expressed his view at that time that this restriction was inappropriate, and had resulted in a vacuum of experienced, professional advice being provided to the Ministry, thus undermining 50 years of provincial planning in the region.

10The above-noted finding of conflict of interest by Mr. Doyle’s Ethics Executive, the Deputy Minister, followed on February 8, 2010, as a result of which Mr. Doyle was permanently reassigned to the Provincial Policy Planning Branch, without being provided with an opportunity to explain or defend his actions to the Deputy Minister. He reported to the new position but registered his disagreement with the process and finding of conflict of interest.

11On February 21, 2010, Mr. Doyle wrote his Deputy Minister, giving notice pursuant to Section 8 of Ontario Regulation 378/07 of his intention to file a complaint to the effect that there was no adequate process leading to the finding of conflict of interest and directions and that he did not concur with the rationale for or basis of the finding. A meeting followed on March 4, 2010 to discuss the issues, and on April 8, 2010 the Acting Deputy Minister who had met with him at the March 4 meeting, wrote him confirming the finding of conflict. Two further meetings followed on April 9 and 14, 2010.

12On April 27, 2010, Mr. Doyle submitted a Disclosure of Wrong Doing to the Office of the Integrity Commissioner (OIC) pursuant to Part VI of the Public Services of Ontario Act, 2006, (PSOA) followed by submission of a Disclosure of Wrongdoing Form to the OIC on May 20, 2010, alleging that he was wrongly restricted from carrying out his responsibilities as a result of inappropriate influence on the Ontario Public Service by development interests in pursuit of their own pecuniary interests.

13On May 31, 2010 Mr. Doyle submitted a two-part application to the Public Service Grievance Board (PSGB) based on his view that the finding of conflict of interest by his Ethics Executive constituted disciplinary action and that the process for the finding was not appropriate or fair. This was followed by the submission of revised applications on June 15, 2010.

14The parties unsuccessfully attempted mediation on a number of occasions, and repeatedly consented to the adjournment of the complaints before this Board to allow for attempts to deal with the matter internally, and for the process of the Integrity Commissioner to unfold. When the matter remained unresolved after the conclusion of the Integrity Commissioner’s process, these complaints were brought back on for hearing.

Excerpts from Statute, Regulations and the Rules of the Board and Case Citations

15Relevant provisions of statute, regulations and Rules of the Board are attached as Appendix A for ease of reference. Citations of case law referred to in in the parties’ submissions are to be found in Appendix B.

Procedural Issue – Transcription of the hearing

16Prior to the hearing of the preliminary motions, Mr. Doyle asked to have the proceedings professionally transcribed, at his own expense, to which the employer objected. Argument was heard by teleconference, during which the employer relied on case law drawn mostly from arbitration between unions and management, set out in Appendix 2. In denying the request, the Board commented as follows:

The Board accepts Mr. Doyle’s argument that his complaints are factually and legally distinguishable from those in the cases cited by the employer. Nonetheless, the broader concern for not adding an element of expensive formality to the Board’s proceedings is analogous to the adjudicative contexts dealt with in the case law cited. Despite the fact that the Board deals with many matters that concern issues important to the public interest, transcription has not to date been part of the Board’s usual practice. Further, the Board is not of the view that Mr. Doyle’s complaints are sufficiently exceptional to warrant a departure from its practice of proceeding without formal transcription and the creation of transcripts. Notetaking is the usual manner for the parties and the Board to keep track of the evidence and arguments. In this case, there is also now already a significant body of factual and legal submissions in writing. As well, there is no issue of accommodating a special need of any of the participants that would warrant a change in practice in this case.

17Mr. Doyle also makes reference to s. 10 (1)(e) of the Board’s rules which indicates that the Board shall compile a record of the proceedings which includes the transcript, if any, of the oral evidence given at the hearing. Although Mr. Doyle is correct that this indicates that the Board’s rules thus contemplate the existence of a transcript, and in appropriate cases, the Board may permit transcription, this does not change the rationale for the Board’s ruling in the circumstances of this case. The rule closely tracks section 20 of The Statutory Powers and Procedures Act, which covers a wide variety of tribunals and statutory decision makers.

Preliminary Objections - Considerations and Conclusions

18The issue to be decided in response to the employer’s preliminary objections is whether Mr. Doyle’s complaint should proceed to a hearing on the merits. The employer’s preliminary objection makes three claims, the first two of which are of a jurisdictional nature: a) that the complaint was filed too late; b) that the Board has no jurisdiction to rule on what is essentially a matter of conflict of interest; and c) that the complaint of reprisal for reporting of wrongdoing does not make out a viable case because of the sequence of events of which Mr. Doyle complains.

a) Was the Form 1 Terms and Conditions complaint referred to the Board too late?

19The Board only has the powers granted by The Public Service of Ontario Act, (PSOA) 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 PSOA, which are not subject to the same time restrictions.

20Mr. Doyle filed complaints under both streams. For the more general stream, which deals with complaints concerning terms and condition of employment, preconditions set out in Regulation 378/07, s. 4(1) must be complied with in order for the Board to have jurisdiction. 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. By way of a letter dated February 8, 2010, Mr. Doyle received notice of the employer’s finding of conflict of interest, and gave notice to the deputy minister that he proposed to file a complaint to contest it by letter dated February 21, 2010. There is no issue about the timeliness of the notice to the Deputy Minister. It is the filing with the Board to which the employer objected.

21Once a notice of proposal is made to the Deputy Minister, the regulation provides a dispute resolution period before the complainant is entitled to file a complaint with the Board for mediation and/or arbitration. A complaint will be untimely in the sense of being too early if it is filed before that dispute resolution period has expired, and too late if it is filed more than fourteen days after the dispute resolution has expired. The end of the dispute resolution period is measured in different ways, depending on whether there is a meeting with the deputy minister (or delegate) within 30 days after receipt of the complainant’s notice of proposal to file a complaint. If there is no meeting within those 30 days, the dispute resolution period expires 30 days after the notice of proposal is given to the Deputy Minister [section 9(5) of regulation 378/07]. Mr. Doyle gave that notice on February 21, 2010 in this case, so, if there had been no meeting within the 30 days, the end of the dispute resolution would have been March 23, 2010. However, if there is a meeting between the complainant and the Deputy Minister or delegate within those same thirty days, the end of the period of dispute resolution is changed to the earlier of the day that is 30 days after the meeting, or the day on which the deputy minister gives written notice to the complainant of his or her decision about the proposed complaint.

22In this case, there was a meeting with the Deputy Minister’s delegate on March 4, 2010, which was within the 30 days after Mr. Doyle gave notice of his proposal to file a complaint. Thus, by operation of section 9(3) of the regulation, the end of the period of dispute resolution became the earlier of 30 days after that meeting, which would have been April 3, 2010, or the day on which the deputy minister gives written notice to the complainant of his or her decision about the proposed complaint, which was April 8, 2010. Since April 3 is earlier than April 8, the dispute resolution period for the terms and condition complaint ended on April 3, 2010. Mr. Doyle then had fourteen days to refer the complaint to the Board, pursuant to s. 10 of the regulation, or until April 17, 2010.

23Mr. Doyle first faxed his complaint to the Board on May 30 and then in a fuller manner on June 15, 2010. For the employer, that is the end of the matter for the terms and conditions complaint, as either date is beyond the requirement of section 10 of the regulation. This is in the context of the fact that, section 4.(1) of the regulation provides compliance with section 10 as one of the pre-conditions for a public servant to be in a position to file a complaint with this Board.

24Mr. Doyle does not agree, arguing generally that the time for preliminary motions is long past, and that his case is unique, so that the existing jurisprudence does not inform the present case in any meaningful way. Given the importance of the issues raised by his complaint, Mr. Doyle finds the employer’s efforts to have his case dismissed on a technicality to be an effort to avoid accountability for actions which have seriously impacted his career, with no transparency or rationale as to the method or the basis for the employer’s actions.

25More specifically, as to the regulatory time lines, Mr. Doyle relies on the fact that the employer met with him twice after the April 8, 2010 letter. He submits that the agreement by the employer to meet twice subsequent to the April 8 letter effectively extended the dispute resolution process, and required a further letter from the employer to give proper notice that the dispute resolution period had ended. Further, it made it reasonable to expect that a final letter would be provided to him. In Mr. Doyle’s view, in the absence of such a letter, a complainant would not know when the 14-day clock started ticking, with the perverse effect that while agreeing to meet with him, the employer has in its own mind triggered the 14-day clock. He finds this unseemly, and extremely prejudicial to himself as a complainant, as he legitimately felt the dispute resolution process was continuing. Mr. Doyle submits that it is clearly not fair for the employer to rely on the date of the decision letter to render the filing of his complaint of no effect, on the basis of lack of timeliness, when it agreed after the letter to meet again to discuss resolving the matter. As well, he submits that the employer’s failure to provide a final letter is not in keeping with the requirements of the regulation, or with the spirit and intent of the PSOA.

26Mr. Doyle notes that in the absence of a letter after the final meeting, a complainant would never know if the results of the meeting had the effect of changing the Deputy’s position or finding and thus would leave the complainant in limbo as to whether to proceed to the PSGB. In the face of the uncertainty created by the employer’s actions in this case, he proceeded to the PSGB, but would have done so earlier if he had not thought the dispute resolution period was ongoing.

27As such, with respect to the timeliness of the Form 1 complaint, Mr. Doyle’s submission is that by its failure to provide a written notice of its position subsequent to the last dispute resolution meeting of April 14, the Employer never completed its obligations under the Regulation in relation to the required dispute resolution period. Thus, in Mr. Doyle’s view, the time frame for the expiry of the dispute resolution period was never triggered. In the circumstances, the Board is urged to find that the complaint is properly before this Board. Further, Mr. Doyle urges the Board to find that there is enough of a grey area in regards to the situation that the circumstances should be interpreted in his favour.

28Despite Mr. Doyle’s articulate arguments, it is the Board’s conclusion that the dispute resolution period did expire more than 14 days before he filled his Form 1, and that it does not have the power to extend the time limits to allow the hearing of the terms and conditions complaint on its merits.

29The meetings between Mr. Doyle and Ministry executives after the Deputy Minister’s letter confirming the finding of conflict of interest do not extend the dispute resolution period for the purposes of the regulation, because of the wording of s. 9(3). That wording prescribes that the dispute resolution period ends on the earlier of the day which is 30 days after the meeting, or the day the deputy minister gives written notice to the complainant of the decision about the proposed complaint. The regulation does not contemplate multiple decision letters, and its wording provides a definite end to the dispute resolution period once the decision of the deputy minister is given. The fact that parties to complaints before this Board often continue to attempt to resolve issues after the end of the dispute resolution period defined in the regulation does not alter the operation of the regulatory time lines. Although it would have been open to the parties to agree to extend the dispute resolution period with the consent of the Board, as provided in section 4 (1) of the Statutory Power Procedures Act, there is no evidence of such an agreement between the parties.

30Further, the fact that this matter was adjourned on consent for several years while the Integrity Commissioner’s process unfolded does not make it too late for the employer to bring the preliminary objection, given the wording of the regulation, as it raises a matter going to the jurisdiction of the Board to entertain the complaint. Further, the employer put Mr. Doyle on notice early on in the proceedings that it reserved its rights to bring a preliminary objection. The Board leaves for another day whether some other fact situation would warrant a finding that the employer was estopped from relying on the regulation.

31The present case is quite similar in structure to that of Telford v Ontario (Finance), P-2015-1619, 2016 CanLII 36364 (ON PSGB) (O’Neil). This decision is subject to an application for judicial review which has not yet been heard, but it is a very recent summary of the Board’s jurisprudence on the subject. In that decision, the Board found as follows at paras. 32 and ff., in a passage which is equally applicable to this complaint:

Prior 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 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. This was similar to the power provided in s. 48(16) of the Labour Relations Act (LRA), which gives an arbitrator under a collective agreement the power to extend time lines where there are reasonable grounds for the extension and the opposite party will not be substantially prejudiced by the extension, unless the parties agree that such power is not applicable. The situation changed when the current regulation was put in place without the equivalent power.

The Board has accepted in St. Amant and Ontario (Ministry of Community Safety and Correctional Services), cited in Appendix B, 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 Leisureworld, cited above, where despite the lack of explicit language repealing a previous power to relieve against a time limit for submissions to arbitration, the Court found that the removal of the wording allowing it was equivalent to the repeal of the power.

In Burkholder, relied on by the employer, this Board considered the time limits set out in Regulation 378/07, and wrote as follows at paras. 10 and 11:

There still remains the issue of whether the PSGB has any authority to extend the time limits set out in section 8 of Regulation 378/07 in light of the complainant's claim that the delay was due to a stress related illness. Even though the Board's statutory power to extend time limits had been revoked in 1996, there are PSGB decisions arising during the period from 1996 until Regulation 378/07 came into force where the Board exercised its discretion to extend time limits. These cases, however, all dealt with the time limits set out in former Regulation 977 and these time limits had been clearly expressed in directory language. The language used to prescribe time limits in the new Regulation 378/07, however, is significantly different and leaves no doubt as to its mandatory nature. This choice of mandatory language can lead to no other conclusion than that compliance with these time limits is a precondition to the PSGB assuming jurisdiction over a matter.

Given the mandatory nature of these time limits and the lack of any express statutory authority to relieve against these mandatory time limits, the Board must conclude that it has no power to alter the jurisdictional consequences of a failure to comply with the 14 day time limit to file the Form 1 Application. It is for this reason that this complaint must be dismissed. This conclusion is in no way a reflection on the merits of the complaint itself but merely a determination that the Public Service Grievance Board, as a tribunal created by statutory enactments, can only stay within the limits of these enactments.

This lack of power to relieve against the time limits means that the reasons for not meeting the time lines, however reasonable or sympathetic, are not matters that the Board can rely on to extend the time lines.

Counsel for the complainant urges the Board to find that the restrictions in the regulation are so problematic in the ways set out above, that they should not be considered binding in the way that the Board has found them to be in its previous decisions interpreting Regulation 378/07. Despite the accuracy of counsel’s observations about what one could term a lack of user-friendliness of the wording of the regulation, as well as the fact that it can work hardship in particular cases, I do not find it appropriate to depart from the Board’s established jurisprudence. The Board’s case law, in my view, has been faithful to what the regulation says, interpreted in light of Court decisions such as Leisureworld. As well, Courts at the highest level, as demonstrated in the Supreme Court of Canada’s decision in Ryan v. Moore and Cabot Insurance, have upheld the concept of limitation periods prescribed by the legislature, albeit in that case, of the much longer variety applicable in civil law suits.

Further, consistency, short of rigidity, in tribunal decision making is highly desirable, as affirmed by the Supreme Court of Canada, in IWA v. Consolidated-Bathurst Packaging Ltd., [1990] 1 SCR 282, 1990 CanLII 132 (SCC). This Board’s interpretation of the time limits in Regulation 378/07 has been articulated in a consistent way whenever issues have been raised about them, and it is for the regulatory process to change course if so advised.

32For the same reasons as expressed in the excerpt from the Telford decision just above, the Board finds that it is without the jurisdiction to hear Mr. Doyle’s terms and conditions complaint on its merits. One can readily accept Mr. Doyle’s observation that the nature of his case is not similar to the fact situations in the cases referred to above, and that the issues raised in his complaint are of very serious importance to the integrity of the public service, as it raises issues in respect of the potential for improper influence from private interests on the ability of public servants to work in the public interest. Nonetheless, these aspects of the matter do not change the wording of the regulation, or its application to all matters coming before the Board.

33In relation to the fairness issue that Mr. Doyle raises, it is notable that the regulation binding the Board does not currently afford the flexibility to consider the circumstances of the case in the way that s. 48(16) of the Labour Relations Act does for grievances arising under collective agreements. Mr. Doyle and Mr. Telford are two recent examples of the many complainants who feel very aggrieved by this effect of the current state of the regulation. Moreover, it is not difficult to understand their position, as the current wording can be a technical obstacle to full airing of important issues. Nonetheless, and regardless of whether one agrees with the priorities established in the regulation, the current regulation’s wording is focused on promptness rather than flexibility in this respect, and has the effect of limiting the Board’s jurisdiction.

b) Is the finding of conflict of interest beyond the Board’s jurisdiction?

34Mr. Doyle’s complaint is, in part, a challenge to the finding that he was in conflict of interest when he made submissions on the Simcoe Strategy in 2009. He disagrees with the finding, as his submissions related to a geographic area over which he had no employment responsibility at the time. He also objects to the process used to reach the conclusion, which he finds to have been inadequate since he had no opportunity to address his Ethics Executive on the matter before the finding. He also argues that the reassignment and directions that followed were disciplinary in nature. The employer does not dispute that, if timely, the aspect of the complaint regarding the restrictions could be heard if they were found to be disciplinary, which the employer maintains they were not.

35However, counsel for the employer argues that the finding of conflict of interest is a matter which falls outside the Board’s jurisdiction because of the assignment of the task of making findings of conflict of interest to the Ethics Executives designated under the PSOA. It is the employer’s position that, even assuming a timely complaint, the Board would have to create new terms and conditions of employment to grant the remedy the complainant requests, in particular a reversal of the finding of conflict of interest, and recommendations to the employer concerning systemic human resource and organizations issues arising in this case. In the employer’s view, since the regulation does not mention conflict of interest as one of the subjects on which a complainant can come to the Board, the Board should not take jurisdiction over it.

36Citing a decision of the Grievance Settlement Board (GSB), Ontario Public Service Employees Union (Halsall) v. The Crown in Right of Ontario (Ministry of Agriculture, Food and Rural Affairs), GSB Nos. 2007-1045, 2007-3394, February 3, 2009 (Briggs), employer counsel argues that this Board should adopt a similar approach - to the effect that, where there is no provision in the collective agreement relating to conflict of interest, and the directions were found to be non-disciplinary, the Grievance Settlement Board found no jurisdiction to deal with a grievance contesting the employer’s directions as to conflict of interest.

37Mr. Doyle fundamentally disagrees with the idea that the employer is not accountable for its decisions concerning conflict of interest, and notes that the PSOA does not remove the subject from the Board’s jurisdiction. Further, he observes that the GSB’s Halsall decision, relied upon by the employer, related to a situation dealing with a collective agreement, rather than the situation at hand, where he is not covered by a collective agreement. Further, in his view, the negative effect on his career of the reassignment and restrictions placed upon him, are clearly disciplinary, and the fact that the employer did not refer to them as disciplinary should not end the matter.

38The Board’s jurisdiction over properly filed complaints in respect of discipline and terms and conditions of employment is well established. The employer has conceded that there is jurisdiction if the directions concerning conflict of interest are found to be disciplinary. The jurisprudence in employment law is also very well established that one cannot do indirectly that which one cannot do directly. Therefore, the fact that the employer refers to its directions and reassignment as non-disciplinary is not the end of the matter. The facts of this case certainly raise a viable argument that the directions and reassignment to Mr. Doyle were disciplinary, and thus if it had been properly filed, it could have been heard on that basis.

39The remaining question is whether the conflict of interest provisions and their effect on employees such as Mr. Doyle fall within the Board’s jurisdiction over terms and conditions of employment. As noted, the employer’s position is that, since conflict of interest does not appear in the regulation as an itemized subject over which the Board has jurisdiction, and given the role the statute assigns to the Ethics Executives, it has been removed from the Board’s jurisdiction.

40The statutory provisions regarding the Board’s composition, powers and limitations thereon, are very detailed in many respects. In respect of a complaint concerning terms and conditions of employment section 4(2) of Regulation 378/07 articulates a number of categories which are not to be subject of such a complaint, but matters relating to conflict of interest are not in that list. This must be understood in the context of the revisions to the Board’s governing regulation which resulted in the current wording, in which important changes were made, including the removal of the discretion to extend time limits. At this same time, when the PSOA was amended to include Part VI, and the governing regulation for the PSGB was amended, the Board’s general jurisdiction over complaints concerning terms and conditions was left intact. In this light, the Board cannot accept the employer’s argument that the failure to list conflict of interest in the matters within the Board’s jurisdiction means that it was intended to give exclusive jurisdiction to the Commissioner. Rather, the Board finds this to be the reverse of the situation dealt with in the Leisureworld decision [S.E.I.U., Local 204 v. Leisureworld Nursing Homes Ltd., 70 A.C.W.S. (3D) 281] where a statutory power that had previously existed was removed, and the court found that this demonstrated an intention that the former power no longer existed. In the Board’s view, the fact that the subject of conflict of interest was not added to the list of things excluded from the Board’s jurisdiction, such as pay for performance and job classification matters, supports a finding that there was no legislative intention to that effect.

41It is the Board’s view that in order to find that conflicts of interest were entirely removed from the Board’s jurisdiction, it would be necessary to find that the statutory and policy provisions binding public servants in matters of conflict of interest were not part of their terms and conditions of employment. To the contrary, everything about the tone of the statutory and policy provisions surrounding conflict of interest, as well as the potential consequences set out in statute for their breach, demonstrate the legislature’s intention that they be a very important part of the terms and conditions of the employment of public servants. The fact that the Grievance Settlement Board found in Halsall that the subject matter of conflict of interest was not covered by the relevant collective agreement, in the absence of discipline, was a decision specific to the facts of that case and the collective agreement. It does not speak to the contents of the terms and conditions of public servants excluded from collective bargaining with which the PSGB is concerned. The terms and conditions of employment of those excluded employees come from a variety of sources, such as statute, policy, regulation and individual contractual agreements of various kinds, and include those related to conflict of interest.

42It is apparent that an Ethics Executive, in this case Mr. Doyle’s Deputy Minister, are given important powers and tools for dealing with matters of conflict of interest by the PSOA. However, it would take much clearer language to find that they are given exclusive jurisdiction over the subject matter, or that their decisions are not reviewable as a term or condition of employment. The finding of conflict of interest was a decision of the employer in its managerial and supervisory role, which affected Mr. Doyle’s working conditions. Review of such decisions is at the heart of the Board’s jurisdiction over complaints regarding discipline and terms and conditions of employment both as to procedure and substance.

43The fact that the employer concedes that if discipline follows a finding of conflict, a consequence specifically contemplated by s. 70 of the PSOA, the PSGB is entitled to hear the matter, supports this finding. In order to determine whether discipline for a breach of conflict of interest was justified, the basis for the discipline would have to be examined. The statutory provisions concerning the exercise of the powers of an Ethics Executive, and the direction to public servants to comply with them, found in s. 65 (8) of the PSOA, would be part of the analysis, along with all the other circumstances relevant to the complaint.

44In the Board’s view, the situation in respect of the role of the Ethics Executive is analogous to many other statutory and regulatory provisions, which lead to terms and conditions of employment or disciplinary or other managerial decisions which regularly form part of the complaints heard by the PSGB. For example, the PSOA and other statutes assign many responsibilities, such as who will set remuneration, or who is responsible for the administration of the many diverse provincial institutions and ministries. These provisions become part of the structure of managerial responsibility which produce or affect the terms and conditions of an employee’s employment, including by way of direction or penalty which are argued to be disciplinary. The PSGB is not empowered to set terms and conditions of employment, but it is given the role of enforcing the application of these terms and conditions by way of regulation 378/07, which gives the Board jurisdiction over properly filed complaints about terms and conditions of employment and discipline.

45In exercising its jurisdiction over complaints which raise issues about the interaction between the PSOA provisions about conflict of interest and the relevant terms and conditions of employment, the Board would, of course, be required to have due regard for the statutory provisions. See, for an example of such an approach, albeit with a different kind of issue, and in the context of an arbitration under a collective agreement dealing with PSOA provisions concerning conflict of interest, a decision of Arbitrator Burkett in Ontario (Alcohol & Gaming Commission) v. O.P.S.E.U., Local 565; 171 L.A.C. (4th) 382, where the employer argued that the arbitrator’s jurisdiction to review a conflict of interest policy for reasonableness was ousted by the provisions of PSOA as to the Commissioner’s role. The arbitrator carefully traced his jurisdiction under the collective agreement, taking into account the statutory authority of the Commissioner. He delayed his consideration of the policy in question until the Commissioner had completed the statutory process of review of the policy, but reserved his jurisdiction under the collective agreement to the extent that the employer’s policy might exceed or deviate from the minimum statutorily mandated rules, as well as over the process of consultation which led up to the formulation of the conflict of interest policy.

46In sum, the Board finds that the fact that Mr. Doyle’s complaint has aspects related to conflict of interest does not remove it from the Board’s jurisdiction. Whether or not the specific remedies requested would be granted if the matter proceeded on its merits does not determine the jurisdictional question, and is best left for a hearing on the merits in an appropriate case.

c) Does the complaint under Part VI make out a viable case for a reprisal in response to the reporting of wrongdoing?

47It is clear in the regulation that the time lines discussed above do not apply with respect to Mr. Doyle’s complaint under Part VI of the Act (Disclosing and Investigating Wrongdoing). For this stream of Mr. Doyle’s complaint, the employer argues that, even accepting the facts pleaded by him, they do not make out a viable, or prima facie, case, and should be dismissed on that basis. Foremost among the employer’s submissions is that Mr. Doyle only disclosed what he alleged was wrongdoing to the Commissioner after the restrictions which he claims were a reprisal. The employer relies on the finding of the Board in its decision in the case of Martin Ois (Complainant) v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2014 CanLII 76835 (ON PSGB) (O’Neil), to the effect that where that is the time sequence, a complaint of reprisal cannot succeed.

48By contrast, Mr. Doyle sees the time sequence as starting with the initial restrictions which began in 2003, rather than just relating to the events of 2010 when it is clear that the finding of conflict preceded the disclosure to the Commissioner. Mr. Doyle notes that the restrictions were imposed before the protections in Part VI of the PSOA, under which he now complains, came into force. Nonetheless, he did tell Ministry management at that time that he thought the restrictions were wrong. As well, in 2007, he expressed his view that the Simcoe-wide restriction was wrong and inappropriate. However, he did not feel it was an option to disclose the wrongdoing to those who were responsible for it in the first place. His decision to address the Simcoe Strategy publicly, but as a private citizen, in 2009, was informed by his view that in restricting him from working on Simcoe County, the Ministry had engaged in wrongdoing, by depriving the government of the best independent advice, and was threatening the health and wellbeing of that region, and by extension the rest of Ontario. Mr. Doyle emphasizes that the matter he addressed was a discussion paper only, in response to a general call for public input, rather than the official position of the government. Since he had been assigned no responsibility for the matter for 2.5 years by then, he felt authorized to provide input as a private citizen, and he did so because of the enduring importance of the issues. In doing so, he submits he gave the government the planning advice required on the issues, rather than taking the government to task.

49Mr. Doyle points out that in reassigning him in 2010 to a policy job, he was removed from having any approval role at all in provincial planning. Mr. Doyle sees the transfer as a disciplinary reprisal for speaking out in 2009 on what was wrong with the approach represented in the discussion paper entitled “Simcoe Area: A strategic Vision for Growth”. He asserts that the basis of his reprisal complaint is that the finding of conflict was a reprisal for making his submission to the public consultation in 2009, which in turn arose from his verbal disclosure to senior Ministry executives that the restrictions were wrong.

50Mr. Doyle’s position raises the issue of whether his remarks in 2009 were a disclosure of wrongdoing, to which the 2010 reassignment could then be seen as an action in reprisal.

51Those remarks make up a fifteen-page paper which was filed in these proceedings. They articulate a detailed, thoughtful analysis which was clearly critical of those elements of the strategy which would promote new major urbanization in South Simcoe County. He offered the advice that this would undermine Lake Simcoe’s water quality, as well as the government’s overall vision for the Greater Golden Horseshoe, represented by such initiatives as the Greenbelt Plan and the Lake Simcoe Protection Plan. The latter addressed Lake Simcoe’s finite capacity to provide water and assimilate sewage and storm water and required environmental assessments for servicing (sewer, water and stormwater). Mr. Doyle emphasized that designating additional land for urbanization without those assessments and framework in place would perpetuate the problem that had already resulted in the degradation of Lake Simcoe. The paper identifies several other major planning issues in relation to transportation, highway infrastructure, providing for complete communities, employment and agriculture, and the need for respect for already approved plans and the stability of a major agricultural region. It is an informed, multi-layered analysis of the proposed direction, its historical antecedents and predicted planning, fiscal and environmental consequences. Although he identifies two positive elements, there can be no doubt that Mr. Doyle’s remarks communicated his view that the other elements of the proposal made the direction wrong, contrary to the public interest, and not supportive of a democratic planning process.

52It is the employer’s position that Mr. Doyle’s submissions in 2009 were neither a disclosure of wrongdoing, nor made in accordance with Part VI of the PSOA. The prohibition for reprisal for reporting wrongdoing is in s. 139, which reads as follows:

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).

53This section sets out the building blocks for a viable complaint of reprisal, in that Paragraphs (a) to (e) of s. 139 set out the triggers for prohibited reprisals, including the one in focus here: a disclosure of wrongdoing under Part VI. “Wrongdoing” is a term defined in section 108, divided into four categories which can be summarized as actions of a public servant which constitute:

(a) 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.

54On their face, Mr. Doyle’s remarks are aimed at warning the government away from a direction that he believes would create environmental and health dangers, and one can infer, a mismanagement of taxpayer funds. They are presumably aimed at public servants who formulated the strategy with which he disagrees. However, the remarks do not actually disclose wrongdoing. Moreover, and importantly for this portion of the complaint, even if one were to interpret the remarks broadly, in light of knowledge of the preceding restrictions, as a protest against what he sees as the wrongful removal of his responsibility for planning in the Simcoe region, they are not a disclosure in accordance with Part VI, which is what is contemplated by the statute as the precursor to the prohibited reprisals.

55The procedure for disclosing wrongdoing is set out in s. 114 of the PSOA, and contemplates disclosure to a public servant’s relevant Ethics Executive, or to the Office of the Integrity Commissioner. This is a prescribed route, internal to the government, to allow for the kind of confidential investigation that the statute has contemplated. It is true that Mr. Doyle’s submissions were made to a forum which was set up by government, but it was for public consultation, and has none of the hallmarks of a disclosure of wrongdoing in accordance with Part VI of the PSOA, or of an attempt to seek compliance with Part VI. The remarks only came to the attention of Mr. Doyle’s Ethics Executive some time after they were made, when they were picked up by the press, and thus it would be a considerable stretching of the facts to say they were a disclosure to his Ethics Executive. As well, there is no evidence that the remarks reached the Integrity Commissioner until after the reassignment complained of as a reprisal. Nor is there evidence of any use of the directives for disclosure contemplated by the statute. There may be fact situations where compliance with the procedural requirements for reporting wrongdoing is not necessary to being considered under Part VI, especially given the categories in s. 139 of seeking advice or enforcement of Part VI. However, the facts of this case do not appear to the Board to have been associated with the provisions of Part VI in any meaningful way until after the reassignment in 2010.

56As noted above, Mr. Doyle argued that the finding of conflict was a reprisal for making his public submission in 2009, which in turn arose from his verbal disclosure to senior executives that the restrictions were wrong. This raises the suggestion that when he voiced his objection to the restrictions on his planning responsibilities, he had made a disclosure of wrongdoing which was brought forward through his submissions to the public consultation. The facts before the Board about those communications are that the restrictions were imposed in 2003 and 2005, which was before Part VI was in effect, so that it is difficult to see how it could be a disclosure in accordance with Part VI. Section 113(3) specifically recognizes that there may be other lawful routes of disclosure, but distinguishes them from the type of disclosure prescribed in Part VI, in the following wording:

Nothing in this Part shall be interpreted to limit any right that any public servant may have under any other Act or otherwise at law to disclose information about wrongdoing in the public service of Ontario.

57In the result, on the facts of this case, the Board finds that the only disclosure of wrongdoing in accordance with Part VI of the PSOA occurred after the restrictions and reassignments complained of as a reprisal. Therefore, and regardless of the importance of the issues he raises, there is not a viable basis for a successful complaint of reprisal under Part VI of the PSOA.

58Given these findings, it is not necessary to address another element of the employer’s argument, to the effect that the amount of time intervening between the initial restrictions and the reassignment said to be a reprisal for his protesting them, was too long to support a viable case of reprisal.

Disclosure to the Press

59After the hearing of the preliminary motions, requests were received by the Board for access to the parties' submissions to the Board on Mr. Doyle’s complaints. After seeking and considering submissions from the parties, the Board made the following ruling on March 10, 2017:

The Board has considered the parties' submissions on the question of the request for release of the parties' submissions to the press, Mr. Doyle's favouring release, and the employer's favouring redaction of some portions relating to the process before the Integrity Commissioner. As the question of the use of information related to an investigation by the Integrity Commissioner in a matter before the Board is one of first impression for the PSGB, the Board has decided to seek comments from the Integrity Commissioner about release of the information to which objection was taken. In the interim, the Board has decided to release material on the file to the reporters for the Globe and Mail and Toronto Star in partial form, with redaction of references objected to concerning the content of the Integrity Commissioner's investigation, report and findings, pending consultation with the Office of the Integrity Commissioner.

60The parties were directed not to further disclose the material pending further direction from the Board. Disclosure of the portions of the material not objected to was made to the requesting newspapers, who were advised that the facts asserted in the documents had not been proven in a hearing, that there had been no findings of fact by the Board and that documents referred to as "agreed statements of fact" were in fact proposals for agreed statements of facts, and did not result in agreement on all the facts in those documents, such that they should be considered to be statements of the position of the party making them, subject to potential later proof.

61Submissions were then sought and received from the Office of the Integrity Commissioner, the Honourable A. David Wake, and the parties were given the opportunity to comment on those submissions. The Commissioner’s position is that no information relating to an investigation conducted by former Integrity Commissioner Morrison should be released to the press. Central to the submissions from counsel to the Integrity Commissioner is the legislative requirement in s. 112 of the PSOA that its process be conducted in a manner that protects the identities of persons involved, 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. The Commissioner’s submissions underlined that this section is of the utmost importance as it provides assurance to “whistleblowers” and those giving evidence during the course of an investigation that their identities will be protected to the extent possible. In light of this, the Commissioner does not make any information public about its investigations, unless it decides to make a public report as contemplated by section 130, or in an anonymized summary published in its annual report under section 133.

62The Commissioner further made the following three submissions:

a) that the PSGB does not have jurisdiction to make information about the investigation public, as that role is reserved to the Commissioner under section 130 of the PSOA. The Commissioner notes that it can be inferred from the lack of a public report in respect of Mr. Doyle’s disclosure that Commissioner Morrison did not find it to be in the public interest to publish a report. It is the Commissioner’s position that the PSGB would be improperly stepping into the Commissioner’s shoes to order that information about the investigation be released to the media;

b) that confidentiality in respect of this information is required by the PSOA, and that release to the media would be contrary to the intent of sections 112 and 130 of the PSOA. The Commissioner submits that if it had been intended that information about investigations be made widely available, these provisions would not have been required.

c) that any prior release of an investigation report to members of the Ontario Public Service and/or Mr. Doyle does not create an expectation that information about the investigation will be released publicly. Section 136 provides for the release to the discloser of such information as the Commissioner finds appropriate.

63The employer supports the Commissioner’s submissions, while Mr. Doyle argues for disclosure of the limited material about the Commissioner’s investigation contained in his own submissions. In dealing with these submissions, the Board has framed them in a way that protects the confidentiality of the information to the extent possible, in light of the conclusions drawn below. Nonetheless, the essence of the submissions is represented here, even though every aspect of the submissions is not reproduced below, and all of them have been carefully taken into account.

64Mr. Doyle underlines the fact that the former Commissioner released some information about the investigation, both to him and to others. As well, the Commissioner publishes Annual Reports which contain information about the cases summarized there, albeit in an anonymized fashion. Further, Mr. Doyle highlights the fact that the PSGB has its own obligations for a public hearing process. It is Mr. Doyle’s position that to the extent that the OIC released information of its own volition, the PSGB would not be releasing confidential information in following suit.

65In making its submissions the Commissioner did not comment on the accuracy of the information redacted from the PSGB’s disclosure to the press, considering it inappropriate, both because of the need for the Commissioner to maintain confidentiality and so as not to interfere with the proceedings before the PSGB. It is Mr. Doyle’s position that by not assessing the accuracy of the redacted information, and whether its source was confidential or already public, the Office of the Integrity Commissions failed to make a determination on a fundamental matter, and thus did create potential interference with the PSGB’s public hearing process.

66In response to the other submissions of the OIC, Mr. Doyle submits that the PSGB would not be stepping into the Commissioner’s shoes because it would not be releasing information from the confidential report, and would just be meeting its own obligations to conduct a fair, public hearing. Essentially, Mr. Doyle is looking to statements from the OIC to assist in the documentation and validation of facts relevant to the proof of his case. For Mr. Doyle, the complaints before the PSGB and the OIC investigation are inextricably bound together. He notes that, although the report that he was provided with was redacted, he signed no confidentiality agreement in this respect.

67Mr. Doyle is not privy to what individuals received the report, and in what form, and made other submissions about the distribution of the report within the Ministry, which it is not necessary to deal with for the purposes of this decision.

68For the purposes of this portion of the decision, the question to be answered is whether Mr. Doyle’s full submissions should be released to the press, despite the fact that doing so would make public certain information about the OIC’s process that the Commissioner did not make public, and/or make it possible to identify individuals not identified by the Commissioner in what she did publish. In this respect, it is noteworthy that the Board has not seen the Commissioner’s confidential report and Mr. Doyle has been circumspect in limiting the matters in respect of the Commissioner’s process that he wishes to be made public to those which he sees as necessary to his complaint. Further, in his submissions in response to the Commissioner’s comments, he identified some portions that he recognized might reveal confidential details of the Commissioner’s process or report and thus could be redacted. However, he objects to the redaction of the rest of his submissions in relation to the Commissioner’s process as they were factual or purely process-related and do not reveal information from the confidential report. Further, it is the complainant’s position that all materials on the Board’s file are public as they all post-date the last mediation session, and are thus related to the public hearing of these matters.

69The request from the press came after an oral hearing at the Board concerning the preliminary motions which they could have attended, but which was only attended by the parties and their representatives. The fact that it would have been possible for the press to have heard the information the employer and the Commissioner are currently objecting to is worth noting, but not determinative, as it is not possible to know in hindsight whether the employer would have made submissions about what should and should not be shared with the press if they had been present.

70Neither party argued that hearings of the PSGB ought not to be public, and the Statutory Powers and Procedures Act provides as follows in respect of tribunals such as the PSGB with statutory decision-making powers:

9. (1) An oral hearing shall be open to the public except where the tribunal is of the opinion that,

(a) matters involving public security may be disclosed; or

(b) intimate financial or personal matters or other matters may be disclosed at the hearing of such a nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interests of any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public, in which case the tribunal may hold the hearing in the absence of the public. R.S.O. 1990, c. S.22, s. 9 (1); 1994, c. 27, s. 56 (16).

Written hearings

(1.1) In a written hearing, members of the public are entitled to reasonable access to the documents submitted, unless the tribunal is of the opinion that clause (1) (a) or (b) applies. 1994, c. 27, s. 56 (17).

Electronic hearings

(1.2) An electronic hearing shall be open to the public unless the tribunal is of the opinion that,

(a) it is not practical to hold the hearing in a manner that is open to the public; or

(b) clause (1) (a) or (b) applies. 1997, c. 23, s. 13 (14).

71The above noted provisions are codification of the practical reality that, even where hearings are generally public, the openness of the hearing is not absolute. It remains in the Board’s discretion to determine whether the desirability of avoiding disclosure outweighs the principle of open hearings. Issues about confidentiality of information in proceedings and decisions of arbitrators and administrative tribunals arise in many contexts. They are generally dealt with by a balancing of the open court principle with claims for confidentiality and privacy, according to the relevant legal and factual context. These issues fall within the power of the adjudicator to control the process, and may involve consideration of the provisions of applicable privacy and other statutes. For a review of many of the issues involved in balancing the sensitivity of personal information and potential harm in its publication, against the presumption of publication created by the open court principle, albeit in a different province’s statutory scheme, see British Columbia Arbitrator Lanyon’s decision in Sunrise Poultry Processors Ltd v United Food & Commercial Workers, Local 1518, 2013 CanLII 70673 (BC LA) affirmed on different grounds in a decision of the British Columbia Court of Appeal, reported as 2015 BCCA 354.

72In dealing with the issue in this case, the parties’ submissions centred on the statutory provisions in Part VI of the PSOA, and the direction in s. 112 that the process of dealing with disclosures of wrongdoing be carried out in a manner that protects the identities of those involved, “except where the interests of fairness require that a person’s identity be disclosed to one or more persons”. Essentially, this amounts to a submission that the statutory provisions create a presumption of non-disclosure. In respect of the differing roles of the Commissioner and the PSGB in respect of this provision, the employer argues that the Commissioner has exclusive jurisdiction because s. 130 puts the release of information into the jurisdiction of the Integrity Commissioner and not that of the PSGB. The fact that the Commissioner may release information to the person who has disclosed wrongdoing to the Commissioner, or to the public in a public or annual report, does not remove the jurisdiction from the Commissioner in the employer’s view. The employer argues that the information Mr. Doyle wishes to disclose would immediately identify not just him, but the Ministry and the nature of the allegations involved because it will be associated with Mr. Doyle, his work and his complaint. In the employer’s submission, this would make the OIC mandate in respect of confidentiality practically useless. The employer sees the context of a release to the media as different than that of the context of receipt of evidence in a hearing where the PSGB has tools at its disposal to protect confidentiality.

73In considering this issue, it is important to make the distinction between the introduction of facts in the context of the Board’s process that may also have been dealt with by the Commissioner, as opposed to making the link between the Commissioner’s investigation or findings about those facts which were kept out of the public domain. It is the latter which is problematic in the Board’s view. In order for the PSGB to deal with Mr. Doyle’s complaint, it is necessary to deal with many of the same facts, and it was not argued that this in itself was problematic. However, to the extent possible while properly performing its adjudicative mandate, the Board finds it appropriate to attempt to keep confidential that which the Commissioner chose not to make public. In the Board’s view, this is analogous to how adjudicators in employment disputes generally treat facts dealt with in mediation. During public hearings, strong protection is given to the confidential nature of mediation and the conversations and proposals exchanged there, to protect its important part in resolving employment disputes. However, the protection is not absolute, as there are sometimes disputes, such as over whether a settlement was reached, which makes it necessary to hear evidence about some of those conversations and refer to them in a public decision. However, the cloak of confidentiality does not extend to the introduction into evidence in a hearing of the matter of facts relevant to and necessary for the hearing of a complaint properly before the Board. What is necessary will be a question for the Board on a case by case basis, and to this extent, the Board does not accept the employer’s argument that the Commissioner has exclusive jurisdiction. The Board will consider and respond to requests from the parties for protection of particular portions of evidence based on privacy or other considerations on a case by case basis as well.

74In this particular case, given the conclusions above about the timeliness of the Form 1 complaint, and the lack of a prima facie case for the Form 1A case, the Board does not find it necessary or desirable to disclose further facts in relation to the Commissioner’s investigation, either in this decision, or to the press. Doing so would provide information that would likely reveal the identity of some participants in the Commissioner’s process, without any necessity for the PSGB’s process, as the complaints will not be proceeding further, and the facts disclosed thus far are more than sufficient to understand the nature of the complaints before the PSGB and this decision.

75To summarize the Board’s findings, for the reasons set out above:

a) Mr. Doyle’s terms and conditions complaint, filed on Form 1, was not filed with the Board in a timely manner, and the Board does not have the power to extend the time limits in order to hear it on its merits;

b) Matters of conflict of interest may fall within the Board’s jurisdiction over a complaint that is properly before it, as falling within the Board’s jurisdiction to hear complaints concerning terms and conditions of employment and discipline;

c) There is not a prima facie case of a reprisal for the disclosure of wrongdoing, as the reporting of wrongdoing occurred after the alleged reprisal, i.e. the reassignment complained of as disciplinary. Thus, the Form 1A complaint will not proceed to a hearing on its merits;

d) The Board declines to disclose further information to the press in respect of the Commissioner’s investigation, findings or reports.

76For the reasons set out above, the complaints are hereby dismissed.

Dated at Toronto, Ontario this 14th day of July 2017.

Appendix A

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.

64. The ethics executive for a deputy minister is the Secretary of the Cabinet.

65. The ethics executive for a public servant who works in a public body, whether as a government appointee, as an employee under Part III or as an employee of the public body is the individual who is prescribed under subsection 71 (1.1) for the public servant or, if no individual is prescribed under that clause for the public servant, the chair of the body.

66. The ethics executive for the Secretary of the Cabinet, the chairs of public bodies and any individuals prescribed under subsections 55 (1.1) and 71 (1.1) is the Conflict of Interest Commissioner.

67. The ethics executive for the Conflict of Interest Commissioner is the Integrity Commissioner. 2006, c. 35, Sched. A, s. 62 (1); 2009, c. 33, Sched. 17, s. 10 (11).

65 (8) A public servant or former public servant shall comply with a direction of the ethics executive or the Conflict of Interest Commissioner. 2006, c. 35, Sched. A, s. 65 (8).

Penalty

70. A public servant who contravenes a conflict of interest rule applicable to him or her or who contravenes a direction under section 65 or 69 is subject to disciplinary measures, including suspension and dismissal. 2006, c. 35, Sched. A, s. 70.

PART VI DISCLOSING AND INVESTIGATING WRONGDOING

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).

Fair and expeditious

112. 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.

113 (3) Nothing in this Part shall be interpreted to limit any right that any public servant may have under any other Act or otherwise at law to disclose information about wrongdoing in the public service of Ontario. 2006, c. 35, Sched. A, s. 113 (3).

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

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).

Directives, Management Board of Cabinet

(2) The Management Board of Cabinet may by directive establish procedures to deal with disclosures of wrongdoing by,

(a) public servants who work in a public body; and

(b) former public servants who worked in a public body immediately before ceasing to be a public servant. 2006, c. 35, Sched. A, s. 115 (2).

Same

(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).

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).

Directives, Management Board of Cabinet

(2) The Management Board of Cabinet may by directive establish procedures to deal with disclosures of wrongdoing by,

(a) public servants who work in a public body; and

(b) former public servants who worked in a public body immediately before ceasing to be a public servant. 2006, c. 35, Sched. A, s. 115 (2).

Same

(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).

REPORT ON CONCLUSION OF INVESTIGATION BY INTEGRITY COMMISSIONER

129. (1) On concluding an investigation of a disclosure under this Part, the Integrity Commissioner shall make a report to the person to whom the Commissioner made the referral under subsection 118 (2). 2006, c. 35, Sched. A, s. 129 (1).

(4) A report required by subsection (1) shall be in writing and shall include,

(a) findings of wrongdoing, if any;

(b) reasons to support any findings;

(c) any recommendations that the Commissioner considers appropriate. 2006, c. 35, Sched. A, s. 129 (4).

PUBLIC REPORTS BY INTEGRITY COMMISSIONER

130. (1) This section applies where the Integrity Commissioner has made a report respecting a disclosure of wrongdoing under section 129 and is of the opinion that it is in the public interest that a public report be made. 2006, c. 35, Sched. A, s. 130 (1).

(2) In the circumstances described in subsection (1), the Integrity Commissioner shall make a public report respecting the disclosure. 2006, c. 35, Sched. A, s. 130 (2).

Annual report, activities under this Part

133. (1) The annual report of the Integrity Commissioner required by section 24 of the Members’ Integrity Act, 1994 shall include,

(a) the number of disclosures received by the Commissioner under section 116 during the year;

(b) the number of refusals made by the Commissioner under section 117 during the year;

(c) the number of referrals made by the Commissioner under subsection 118 (2) during the year;

(d) the number of reports in which the Commissioner makes

recommendations under section 121 during the year;

(e) a summary of what the Commissioner knows respecting responses to recommendations under section 121 during the year;

(f) the number of investigations initiated by the Commissioner under section 122 during the year;

(g) a summary of what the Commissioner knows respecting the outcomes during the year of findings of reprisals under this Part;

(h) anything else that the Commissioner considers relevant in respect of his or her activities under this Part during the year. 2006, c. 35, Sched. A, s. 133

Duty to inform discloser, no public report

136. (1) Where the Integrity Commissioner has a duty to report under section 129 but does not have a duty to make a public report under section 130, the Commissioner shall inform the person who made the disclosure under section 116 that he or she has concluded the investigation. 2006, c. 35, Sched. A, s. 136 (1).

(2) Subject to section 137, the Integrity Commissioner may give the person who made the disclosure such information respecting the investigation and findings as the Commissioner considers appropriate in the circumstances. 2006, c. 35, Sched. A, s. 136 (2).

Limitation on duty to inform

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).

(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).

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).

(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

10.The Board shall compile a record of any proceeding in which a hearing has been held which shall include:

q. any application, complaint, reference or other document, if any, by which the proceeding was commenced;

b. the notice of any hearing;

c. any interlocutory orders made by the tribunal;

d. all documentary evidence filed with the tribunal, subject to any limitation expressly imposed by any other Act on the extent to or the purposes for which any such documents may be used in evidence in any proceeding;

e. the transcript, if any, of the oral evidence given at the hearing; and

f. the decision of the tribunal and the reasons therefore, where reasons have been given.

Practice Note #1

Dismissal of Complaints without a Hearing

Upon receipt of a complaint the Public Service Grievance Board (the Board) may on its own volition or on the request of a party screen a complaint for jurisdiction before listing the complaint for hearing. The Board may dismiss the complaint without a hearing or consultation when it appears on the face of the complaint that the Board is without jurisdiction to hear the complaint because the complainant is not a public servant under the jurisdiction of a Deputy Minister (see P0037/92 Rampersad and WCB, P006/87 Pelissero and GO Transit and P0045/93 Wells/Larson and the LCBO) or the Board is without jurisdiction to grant a remedy (see P0144/95 Laird et al, P0050/95 Blakney et al, P0024/99 Armstrong et al and P0025/99 Easto et al), even if all the facts stated in the complaint are assumed to be true.

However, when the Board deems it necessary, the Board may request and set a date for receipt of further particulars, information or submissions regarding the complaint.

When the Board requests and sets a date for receipt of further particulars, information or submissions regarding the complaint, the Board may:

1. dismiss the complaint without hearing, if the particulars, information or submissions regarding the complaint are not received by the Board on the date set;

2. decide that there is a need for a hearing to deal with any issue regarding its jurisdiction;

3. request further submissions from the parties before deciding whether or not to hold a hearing;

4. dismiss the complaint without a hearing when the Board has determined it is without jurisdiction to hear or grant a remedy based upon its review of the particulars, information or submissions regarding the complaint.

Excerpts from the Statutory Powers Procedures Act

Waiver of procedural requirement

4. (1) Any procedural requirement of this Act, or of another Act or a regulation that applies to a proceeding, may be waived with the consent of the parties and the tribunal. 1997, c. 23, s. 13 (1).

(2) Any provision of a tribunal’s rules made under section 25.1 may be waived in accordance with the rules. 1994, c. 27, s.56 (7).

Hearings to be public, exceptions

9. (1) An oral hearing shall be open to the public except where the tribunal is of the opinion that,

(a) matters involving public security may be disclosed; or

(b) intimate financial or personal matters or other matters may be disclosed at the hearing of such a nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interests of any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public,

in which case the tribunal may hold the hearing in the absence of the public. R.S.O. 1990, c. S.22, s. 9 (1); 1994, c. 27, s. 56 (16).

Written hearings

(1.1) In a written hearing, members of the public are entitled to reasonable access to the documents submitted, unless the tribunal is of the opinion that clause (1) (a) or (b) applies. 1994, c. 27, s. 56 (17).

Electronic hearings

(1.2) An electronic hearing shall be open to the public unless the tribunal is of the opinion that,

(a) it is not practical to hold the hearing in a manner that is open to the public; or

(b) clause (1) (a) or (b) applies. 1997, c. 23, s. 13 (14).

Appendix B

Authorities referred to by the parties

In respect of the preliminary objections:

1. Part V – Grievance Procedure - Public Service Act, Reg. 977 [since repealed].

2. (a) Public Service of Ontario Act, 2006, Ontario Reg. 378/07- Public Service Grievance Board: Complaints and Hearings.

3. (b) Public Service of Ontario Act, 2006, S.O. 2006, C.35, Sched. A, s. 108, s. 139 – 140 – Part VI: Disclosing and Investigating Wrongdoing.

4. (c) Public Service of Ontario Act, 2006, Ontario Reg. 383/07 – Ethics Executive: Additional Powers, Duties and Functions under Part IV of the Act.

5. PSGB Rules and Practice Notes – Practice Note #1 – Dismissal of Complaints without a Hearing.

6. S.E.I.U., Local 204 v. Leisureworld Nursing Homes Ltd., 70 A.C.W.S. (3D) 281.

7. Hall v. Beachamp, 2010 CLB 2419; 2010 CanLII 6691 (ON LRB), 2010 CanLII 11287 (ON LRB).

8. St. Amant (Complainant) v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), PSGB No. P-2012-0601, January 31, 2013; 2013 CanLII 4673 (ON PSGB) (Carter).

9. Bourgeault (Complainant) v. The Crown in Right of Ontario (Ministry of Community Safety ad Correctional Services), PSGB Nos. P-2012-3326, P-2012-3327, November 14, 2013; 2013 CanLII 84294 (ON PSGB) (O’Neil).

10. Martin Ois (Complainant) v.The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), November 13, 2014; 2014 CanLII 76835 (ON PSGB) (O’Neil).

11. Donn Burkholder (Complainant) v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), PSGB No. P-2013-0846, November 8, 2013; 2013 CanLII 84293 (ON PSGB) (Carter).

12. Oral Binda (Complainant) v. The Crown in Right of Ontario (Ministry of Environment), PSGB No. P-2011-2193, March 9, 2012; 2011 CanLII 93306 (ON PSGB) (O’Neil).

13. Ontario Public Service Employees Union (Halsall) v. The Crown in Right of Ontario (Ministry of Agriculture, Food and Rural Affairs), GSB Nos. 2007-1045, 2007-3394, February 3, 2009, 2009 CanLII 15420 (ON GSB) (Briggs).

14. LaFreniere (Complainant) v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services, PSGB No. P-2007-1322, August 27, 2008; 2008 CanLII 70542 (ON PSGB) (O’Neil).

15. Burt (Complainant) v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) PSGB No. P-2010-1988, March 3, 2011; 2011 CanLII 23300 (ON PSGB), (O’Neil).

16. Smith et al (Complainant) v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) PSGB No. P-2012-4155, July 9, 2014; 2014 CanLII 48098 (ON PSGB) (O’Neil).

17. Mario Laforest et al (Grievors) v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) PSGB No. P-2007-1679 et al, July 21, 2008; 2008 CanLII 70541 (ON PSGB) (O’Neil).

18. Girling (Grievor) v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) PSGB No. P-0013-98, May 8, 2002; 2002 CanLII 45638 (ON PSGB) (Leighton)

19. A Grievor v. The Crown in Right of Ontario (Ministry of Health), PSGB No. P/14/90, September 8, 1995 (Springate).

20. Ontario Public Service Employees Union (Grifferty) v. The Crown in Right of Ontario (Ministry of Government Services), 2012 CarswellOnt 12872, 112 C.L.A.S. 245; 2012 CanLII 67527 (ON GSB) (Devins).

21. Neill Haines (Applicant) v. Cameron Steel Inc., (Responding Party), [2011] O.L.R.D. No. 207; 2011 CanLII 25381 (ON LRB) (C. Murray).

In respect of transcription of hearings

20. Ontario (MTO) v. OPSEU (Finnan) 2009, 97 CLAS 134

21. Children’s Hospital of Eastern Ontario v. OPSEU, 2014 CanLII 40165 (ONLA) (Parmar)

22. Clarke Institute of Psychiatry v. ONA (1995) 1995 CanLII 18326 (ON LA), 45 LAC (4TH) 284

23. Stelco Inc., Hilton Works v. USWEA, Local 1005 (1988) 1988 CanLII 9154 (ON LA), 2 LAC (4TH) 219

24. Canada Post Corp v. CUPW (2009) 185 LAC (4th) 379

25 Canada Broadcasting Corporation v. CUPE (1991) 1991 CanLII 13363 (CA LA), 22 LAC (4TH) 9

26. Mosaic Potash Colonsay ULC v. USW (Jansen), 2015 CanLII 77883 (SKLA) (Hood)