PSGB#P-2015-2530

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Rancourt

Complainant

• and -

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

Employer

BEFORE

Deborah J.D. Leighton

Vice Chair

FOR THE COMPLAINANT

John Yach Yach & Associates Counsel

FOR THE EMPLOYER

Stewart McMahon Treasury Board Secretariat Legal Services Branch Counsel

HEARING

May 18, 2017

Decision

1Mr. Andre Rancourt, was a sergeant at Ottawa Carlton Detention Centre (OCDC) before the Ministry terminated his employment on October 13, 2015. Mr. Rancourt filed a complaint with the Board on November 25, 2015, alleging that the employer terminated his employment without just cause. This is an interim decision on the motion of the employer to suppress the name of the employee who reported certain information to senior management at OCDC, which led to the investigation, which led to the complainant’s termination. The employee has been referred to as ‘Officer Doe’ throughout the proceeding. The motion proceeded with written submissions and oral argument on May 18, 2017. Two days of the hearing have been held and on November 29, 2016, the occurrence report of officer Doe was entered into evidence.

2Counsel for the employer argued that the name of officer Doe should be confidential because, like a police informant and for the same reasons, his or her identity should be protected. Alternatively, he argued that the disclosure of wrongdoing provisions of the Public Service Act of Ontario, 2006, protects those employees who report serious acts of wrongdoing by other public servants. Counsel also cited the “code of silence” in Corrections, which acts to discourage correctional officers from disclosing serious wrongdoing for fear of being labelled a “rat” and the potential for the informant to suffer serious reprisal. Finally, counsel argued that the only reason for putting forth the evidence of Officer Doe was to explain what precipitated the employer’s investigation into the complainant’s behaviour. Counsel for the employer submitted that since the Ministry did not rely on the evidence of officer Doe, in deciding to discharge the complainant, his or her name is not relevant.

3Counsel for the complainant argued that informant privilege has no application to the case before me. He argued that police informant privilege cannot be applied as an “informer privilege” to civil or administrative proceedings. Counsel argued further that the disclosure of wrongdoing provisions in the PSA0 similarly have no application to the case. The board sets its own rules and procedures and is not bound by the disclosure of wrongdoing provisions of PS0A. Counsel urged me to find that as a matter of procedural fairness the employer is obliged to disclose the identity of officer Doe. This is so particularly because of the evidence introduced by the employer on the first full day of the hearing, that is, the occurrence report written by officer Doe. Finally, counsel argued that the identity of officer Doe may not be relevant to the employer’s case but it is to the complainant’s. The complainant is entitled to disclosure of all relevant materials and the employer has already entered a document written by officer Doe. Counsel wants to cross-examine officer Doe on this document. Procedural fairness requires that he know the identity of this individual.

4Having carefully considered the submissions of the parties I am persuaded that procedural fairness requires that the employer provide the identity of officer Doe to the complainant. As counsel for the employer stated, it is trite law that a vice chair of the PSGB has broad authority over ordering disclosure. This authority must be exercised in accord with procedural fairness and the principles of natural justice. And procedural fairness requires that the identity of officer Doe be revealed. The employer tendered an occurrence report written by officer Doe and the complainant has a right to cross-examine this individual, should he choose to do so.

5Consequently, the employer is hereby ordered to provide the name of officer Doe to the complainant forthwith.