PSGB# P-2017-1171; 2017-1748

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 and Housing)

Employer

BEFORE

Kathleen G. O’Neil

Chair

FOR THE COMPLAINANT

David R. Donnelly Donnelly Law Counsel Sara Gray, Student-at-law Alex Whyte, Student-at-law

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING

February 14, 28 and March 16, 2018

DECISION

1This decision deals with two complaints dated July 27 and October 2, 2017, filed by Victor Doyle, at the time a senior planner with the Ministry of Municipal Affairs and Housing. The first complaint contests a finding of conflict of interest dated June 5, 2017 and subsequent reassignment, as unjustified discipline, tantamount to constructive dismissal. The second claims that the employer’s recent measures constitute a reprisal for a submission of allegations of wrongdoing to the Integrity Commissioner, as well as to this Board, in 2010.

2The merits of those complaints are dealt with below. As well, the arguments and result of the employer’s preliminary motion asking that these matters be dismissed as moot, given intervening events, are set out.

Factual Context – Overview

3This dispute is rooted in a lengthy series of events which, for our purposes, began in 2003, when Mr. Doyle was restricted by Ministry executives from working on a single file in Simcoe County. A further restriction followed in 2005, from performing any of his previously assigned planning responsibilities for all of Simcoe County, while retaining responsibility for the rest of the central planning area of the province. In 2009, he made a public submission, as a private citizen, to a provincial government consultation in response to a discussion paper concerning a proposed land-use planning strategy for the Simcoe area to which he was no longer assigned, known as the Simcoe Strategy.

4In February, 2010, after articles appeared in the press concerning Mr. Doyle’s submission about the Simcoe Strategy, his Ethics Executive found that a conflict of interest had arisen from Mr. Doyle’s public dissemination of his views. As a result, he was permanently reassigned from his position as Manager of Community Planning and Development to the position of Manager of the Planning Innovation Section in the Local Government and Planning Policy Division.

5Important to the present complaints, the finding of conflict of interest and reassignment in 2010 was accompanied by the following direction from his Deputy Minister and Ethics Executive at the time:

In order to avoid any future conflict of interest or potential conflict of interest, and in accordance with your obligation as a public servant, any conflict of interest or potential conflict of interest must be reported to me as your Ethics Executive. I direct you to advise me and seek my direction before you publicly express your views about land use planning matters, policies and processes as such actions may interfere with your ability to perform your duties to the Crown.

6In April 2010, Mr. Doyle submitted a Disclosure of Wrongdoing to the Office of the Integrity Commissioner pursuant to Part VI of the Public Service of Ontario Act (PSOA), alleging that he had been 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. This was followed by a two-part application to this Board in May 2010 based on his view that the February 2010 finding of conflict of interest by his Ethics Executive constituted unwarranted disciplinary action, that the process leading up to the finding was not appropriate or fair, and that the employer’s actions constituted a reprisal for his earlier reporting of wrongdoing.

7The Integrity Commissioner conducted a lengthy confidential investigation during which Mr. Doyle’s previous complaints to this Board were adjourned on consent. When those complaints remained unresolved after the conclusion of the Integrity Commissioner’s process, they were brought back on for hearing. In a decision dated July 14, 2017, now reported as 2017 CanLII 52705 (ON PSGB), the earlier complaints were dismissed, without a finding on the merits, on the basis of successful preliminary objections by the employer, but the Board found that the fact that a properly filed complaint deals with conflict of interest would not put it outside the Board’s jurisdiction.

8As noted in the Board’s previous decision, Mr. Doyle complained that he was permanently reassigned to the Provincial Policy Planning Branch in 2010, 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. He has never agreed that he was in conflict of interest, then or now, or that the process or substance of the employer’s actions were appropriate.

9On May 7, 2017 Mr. Doyle released a report entitled “The Growth Plan and the Greenbelt - Setting the Record Straight”, which was picked up by the Globe and Mail in an article published on May 11, 2017, entitled “Ontario’s Greenbelt Architect Launches Defence of Anti-sprawl Policies”, which included quotes from the complainant as a result of an interview with a reporter.

10The following day, the complainant advised his Ethics Executive, Deputy Minister Laurie Leblanc, of the dissemination of the paper, and the article in the Globe and Mail. She responded on June 5, 2017 with the findings and decision which are the subject matter of this complaint, stating that the public dissemination of the paper he had authored constituted an outside undertaking that resulted in a conflict of interest. Reference was made to subsection 8(2) of Regulation 381/07 under the PSOA, which sets out rules pertaining to conflict of interest for public servants. The letter also stated that the complainant was unable to cure this conflict of interest so long as he remained in his (then) position and was to be transferred permanently to the position of Manager, Special Research Projects, reporting to the Assistant Deputy Minister of the Local Government and Planning Policy Division, Kate Manson-Smith, retaining his previous salary and classification.

11Fundamental to the current complaints, there was no discussion or meeting between Mr. Doyle and his Ethics Executive prior to these findings and the decision that a transfer out of planning duties into a research position was the only viable solution.

12The findings set out in the letter of June 5 were apparently made by Deputy Minister Leblanc, while Assistant Deputy Minister Manson-Smith was responsible for the creation of the position to which Mr. Doyle was transferred. This new position had no staff reporting to it, and involved a relocation to a different office on another floor, which was nearly vacant, isolated from all the land use planners and the staff he had worked with, and supervised, for the past 30 years. He was assigned to undertake research on the implications of driverless cars and climate change adaptation in relation to land use planning. Mr. Doyle’s evidence was that this was work which was being done by other ministries, and was at a level appropriate to employees he had been supervising, rather than work appropriate to his managerial classification.

13He concluded that his services were no longer wanted by the Ministry, and entered into conversations which resulted in a confidential settlement dated November 27, 2017 and he left the public service in January 2018. To the extent possible, these reasons preserve the confidentiality of that settlement.

Excerpts from Statues and Regulations/ Case Law Citations

14Relevant provisions of statute and regulations are attached as Appendix A for ease of reference. Citations for case law referred to in argument or in this decision are to be found in Appendix B.

The mootness motion

15The employer asked that the current complaints be dismissed without a hearing on their merits, on the basis that they had become moot because of the complainant’s departure from the public service following the confidential settlement. The complainant resisted the motion, on the basis that there were a number of important live issues, which the settlement did not compromise.

16The employer argues that the fact that Mr. Doyle has already left the public service means that the dispute about his terms and conditions of employment should be considered moot, as he no longer has any. For instance, the employer submits that the previous directions as to how he should conduct himself while an employee no longer apply to him. Employer counsel observes that only the post-service conflict of interest rules bind him, and his Ethics Executive is now the Public Service Commission, rather than his former deputy minister.

17Further, the employer argues that certain portions of the complaints are beyond the jurisdiction of the Board because of the provisions of Regulation 378/07 under the PSOA, which removes jurisdiction over an “assignment to a particular class of position” from the subjects about which complaints may be made to the Board. In the employer’s view, this means the Board is without jurisdiction to review the employer’s decision to assign Mr. Doyle to the research position.

18Mr. Doyle’s remedial requests include the repeal or withdrawal of the finding of conflict of interest, a public apology, recommendations from the PSGB in relation to establishing fair and transparent procedures for engaging with employees prior to making findings of conflict of interest, a public hearing to document the above process, as well as legal costs.

19In reviewing these, employer counsel submits that both the withdrawal of the finding of conflict of interest and the establishment of a new process for the determination of conflicts of interest would effectively create new terms and conditions of employment, something the Board has consistently found to be beyond its jurisdiction. The Employer disputes the Board's jurisdiction to alter, amend or repeal any determination of conflict of interest, but argues that even if the Board did have jurisdiction to make such an order, such a determination would have no effect on a former public servant and therefore would be completely moot.

20Referring to the fact that managerial employees such as Mr. Doyle are employed under individual contracts of employment with individualized duties and terms and conditions, counsel argues that any remedy would only apply to Mr. Doyle, and thus does not have the general or public significance that he believes it does. Counsel asserts that any decision on the merits of these complaints would have no guiding value beyond Mr. Doyle himself, who has left the public service.

21As to Mr. Doyle’s requests for an apology, employer counsel submits that the Board has no power to order one.

22Moreover, the employer sees little need to have a public hearing given its view that any remedies at this point are moot, and the Board does not award legal costs except where the conduct of a party is extremely egregious.

23In support of its submissions on mootness, employer counsel relies on decisions of this Board, including Mously and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2010 CanLII 81436 (ON PSGB) which adopts the test in Borowski v. Canada (Attorney General), [1989] 1 SCR 342, 1989 CanLII 123 (SCC) to the effect that in order to determine if a matter is moot, it is necessary to decide whether the tangible and concrete dispute raised in the complaint has disappeared or not. Counsel for the employer submits that the tangible and concrete dispute raised in the current complaints has disappeared, given the complainant’s departure from the public service. To similar effect, reference is made to the PSGB’s decisions in Wallace and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2015 CanLII 32427 (ON PSGB) and Gibson and The Crown in Right of Ontario (Ministry of the Attorney General), 1999 CanLII 32153 (ON PSGB) and the Grievance Settlement Board’s decision in Ontario Liquor Board Employees’ Union (Berry) v Ontario (Liquor Control Board of Ontario), 2004 CanLII 55309 (ON GSB).

24Further, counsel for the employer refers to a decision of the Ontario Labour Relations Board (OLRB) in which that Board noted that a reprisal complaint may be dismissed as non-viable, or lacking a prima facie case, where an applicant has not suffered negative employment consequences, or where events since an alleged reprisal have made the issue moot. See: Stephane Dubuc v. Ministry of Community Safety and Correctional Services, OLRB No. 3419-10-OH, 2011 CanLII 46615 (ON LRB). The employer urges a finding that Mr. Doyle’s fact situation is similar, in that he was not disciplined or denied his full salary and benefits. Even assuming that there was discipline as asserted by Mr. Doyle, (which the employer asserts there was not), it is the employer’s view that, at best, the Board could issue a declaration, which would serve no useful remedial purpose given his departure.

25By contrast, the complainant’s view is that there would need to be some statutory or other bar to hearing this case to make it reasonable to allow the matter to be dismissed without a hearing. Complainant’s counsel submits that there is nothing whatsoever barring this matter from proceeding on the basis that the complainant has since left the public service. Further, since the subject of conflict of interest does not appear in the list of subjects which Regulation 378/07 places outside of the Board’s jurisdiction, there is no regulatory reason that the matter should not proceed, in the complainant’s view.

26Complainant’s counsel distinguishes the cases relied on by the employer on the basis that the facts were significantly different. Counsel notes that in Mously, the complaint had been withdrawn, in Gibson, the Board found no disciplinary action had been taken, and in others, the Board found that the regulation prohibited the proceeding or that no prima facie case had been established. Counsel argues that the current complaints should be heard, given that the PSOA is explicit that the conflict of interest rules cover both current and former public servants. Complainant’s counsel submits that Mr. Doyle has a continuing duty, even after leaving the public service, to notify his Ethics Executive if he feels that he is in a conflict of interest, under s. 65(3) and to act in compliance with directions of the Ethics Executive under s. 65(8) of the PSOA. In this respect, what is a conflict of interest is very much a live issue in the complainant’s view, as talking to the public about provincial planning is fundamental to his future professional prospects and well being. It is the complainant’s view that if the finding of conflict of interest is left to stand, he would be seriously limited in pursuing his profession.

27It is also the complainant’s submission that the issue of whether it is proper to make findings of conflict of interest without due process is a very important live issue with wider public interest implications than just his own case.

28Counsel for the complainant stresses the adverse reputational impact of the finding of conflict of interest. He refers to the Supreme Court of Canada’s decision in Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 SCR 1130 for the high level of recognition, albeit in the context of a suit for defamation, of the importance of a professional’s reputation, and that it must be protected by law in a democratic society. Further, the complainant contends that there was no conflict of interest in the first place, so that the question of violating the directions given in 2010 in respect of conflict of interest should not be applicable. In any event, the complainant sees the alleged violation of those directions as separate from the question of whether there was a conflict of interest in 2017.

29Complainant’s counsel argues that another major live and unresolved issue is the question of whether the public dissemination of a speech or paper can create a conflict of interest. In the complainant’s submission, this is also an important issue for every professional with an independent code of ethics.

30The complainant also relates his interest in clearing his name to the broader issue of the effect of the employer’s treatment of him on other professionals at the ministry. He argues that a chill was created among these professionals as a result of his removal from his former positions. The complainant is also looking for direction from this Board about what is and what is not an outside undertaking, another important issue for planners and other professionals. Mr. Doyle wants professionals and scientists to be able to “speak truth to power” as part of their professional obligations without being accused of conflict of interest or operating an outside undertaking.

31Counsel for the complainant submits that because of the success of the procedural objection to the previous complaints, the air has not been cleared. Mr. Doyle’s former colleagues know that he was found to be in conflict of interest, but because of privacy concerns related to the Integrity Commissioner’s investigation, they do not know what the truth is, which leaves open the idea that he somehow profited by speaking out. The complainant finds it critical that this issue be resolved.

32In response to employer counsel’s submissions about the potential remedy of an apology, the complainant urges a finding that the remedy of an apology is not unnecessary or a waste of the board’s resources. Reference is made to the fact that the Apology Act allows such a remedy, which does not affect liability, and has merits which have been considered in the academic articles cited in the Appendix.

33Complainant’s counsel urges a value in a declaratory remedy as well, citing the PSGB’s decision in Lee v Ontario (Ministry of Community Safety and Correctional Services), 2011 CanLII 49517 (ON PSGB), and the Supreme Court of Canada’s decision in Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 SCR 1120, 2000 SCC 69.

34The complainant seeks systemic remedies as well, since the subject of conflict of interest is of concern across the public service. The practice of the Ontario Human Rights Tribunal is cited in this regard, examples of which are found in Appendix B. Referring to the Public Service Labour Relations Board’s decision in Stringer v. Treasury Board (Department of National Defence), 2014 PSLRB 5, counsel promotes the Federal Court’s endorsement of the value of systemic remedies for the purpose of preventing further problems of the same kind.

35As well, complainant’s counsel refers to the Supreme Court of Canada’s decision in Hunt v. Carey, 1990 CanLII 90 (SCC) for the proposition that, in order to dismiss a claim outright at the preliminary stage, the test is that it must be plain and obvious that there is no reasonable basis to the claim.

36In reply, employer counsel submitted that the structure of Regulation 381/07 means the direction given while Mr. Doyle was a current public servant will not follow him. Only the very distinct set of rules for former public servants now apply and Mr. Doyle has a new Ethics Executive, the Public Services Commission, in the employer’s view. Employer counsel clarified that it is no longer a requirement for Mr. Doyle to seek anyone’s permission before further disseminating his views on land use planning, subject to the continuing obligation not to disclose confidential information. After his departure, if Mr. Doyle finds himself in a potential conflict of interest, he deals with his new Ethics Executive. In counsel’s submission, the finding of conflict of interest does not follow him around any more than his employment file does.

37In respect of systemic remedies, employer counsel argues that the PSGB is dealing with an individual and his duties, and whether or not he was in conflict of interest. Counsel argues that every case is so fact-specific that generalizations would not be appropriate, and that this is why the statute requires individuals to go to their Ethics Executive who will determine the matter and give appropriate direction.

38In response to the complainant’s submissions about a chilling effect on other planners, employer counsel stresses that the Ethics Executive’s direction never was a bar to speaking publicly. It was only a direction to seek guidance first, which, in the employer’s view, Mr. Doyle simply decided to ignore.

39Counsel for both the employer and the complainant made reference to the confidential settlement, and most importantly for this decision, a clause that provided that the release of the employer contained in the settlement did “not affect” these active complaints. To the employer, this meant that it had the right to call for the dismissal of the complaints outright, and to the complainant, it meant that he had the right to continue the complaints without the preliminary objections made by the employer.

40The Board ruled that the current complaints should be allowed to proceed, being of the view that, despite Mr. Doyle’s departure from the public service, his complaints continue to represent a live controversy flowing from the finding of conflict of interest against him, particularly in light of his reputational and professional interest, and thus were not moot. There remain significant issues in this respect that have neither been conceded nor settled. Mr. Doyle has raised an arguable case that there may be continuing or collateral consequences which warrant allowing the matter to proceed. In this respect, and despite the change in circumstances since the complaints were filed, at least some of the relief claimed remains arguably relevant and within the jurisdiction of the Board.

41This conclusion is consistent with the Court’s finding in Masters v. Ontario, 1993 CanLII 8530 (ON SC) that despite the intervening resignation of the applicant in that case, the existence of adverse findings in a report which affected the complainant’s reputation, among other interests, were not properly considered academic in the circumstances. To similar effect, see this Board’s decision in Hough v. Ontario (Ministry of Community and Social Services), 1984 (ON PSGB) 1984 CanLII 37 (ON PSGB).

42As to other grounds for the employer’s motion, the Board did not accept the employer’s characterization of the portion of the complaint dealing with the transfer as a challenge to Mr. Doyle’s’ assignment to a particular class of position, a subject removed from the Board’s jurisdiction by subsection 4(2) of Regulation 378/07. To date in the Board’s jurisprudence, “class of position” has been understood as referring to the class, or classification, assigned by the employer, which determines its pay range, among other things. Subsection 4(2) has been seen as aimed at removing classification complaints from the Board’s jurisdiction, rather than prohibiting all disputes over a transfer or reassignment, disciplinary or otherwise. See, for example, Courchesne-Godin et al v Ontario (Children and Youth Services), 2017 CanLII 89957 (ON PSGB) and Ilika v Ontario (Community Safety and Correctional Services), 2014 CanLII 76834 (ON PSGB). In any event, the question of whether the transfer was disciplinary is clearly within the Board’s jurisdiction pursuant to subsection 3(1) of Regulation 378/07.

43I turn now to the merits of the complaints. The first complaint in 2017 was filed as a Form 1 complaint, and has as its focus the finding of conflict in June 2017 and the resulting transfer. The second current complaint was filed as a Form 1A complaint, concerning the allegation that the employer’s actions constituted a reprisal for Mr. Doyle’s earlier reporting of wrongdoing.

Considerations and Conclusions on the Merits

i. The Form 1 Complaint – Process Before Finding of Conflict and Discipline?

44Although there is little dispute on the facts of this matter, the parties view the issues very differently. The employer sees the actions taken towards Mr. Doyle as non-disciplinary and within its rights, both in respect of the scheme contemplated by the PSOA for the prevention and regulation of conflicts of interest, and in terms of management’s right to re-assign. They continue to argue that the remedies requested should not be granted.

45By contrast, the complainant’s case is based on the idea that the employer engaged in an arbitrary silencing of an award-winning senior planner, without an adequate process, isolating him and driving him out of the public service for adhering to his code of ethical conduct as a professional planner, and for speaking out to defend the public interest when he felt it was needed. The complainant steadfastly defends the idea that there was no conflict with the public interest in his actions, as there has been no suggestion he was benefitting privately, and he was intent on defending the public interest, and the provincial policies he had worked on for three decades.

46I have dealt with the issues raised by the Form 1 complaint in the following order: a) Was the procedure adopted by the employer a breach of its duty of fairness? b) Was the June 5 letter and transfer which preceded these complaints disciplinary? c) If so, did the complainant’s conduct warrant discipline? d) If so, was the extent of the discipline justified? A consideration of the reprisal complaint follows in a separate section.

a) Was the procedure adopted by the employer a breach of a duty of fairness?

47As the Board has found on a number of occasions in the past, the employer owes a duty of fairness to employees such as Mr. Doyle in handling serious allegations against them, as a condition of their employment. The question of the content of the duty of fairness has arisen most often in the context of allegations of harassment against managers, but it has not been limited to that type of allegation, and there is no principled reason that it should be. Procedural fairness has been discussed in a number of Board decisions, both in a disciplinary context, and in non-disciplinary ones. The minimum content of such a duty involves the right to be advised of the allegations, and be given an opportunity to respond before a decision which negatively affects a person’s reputation or career is made.

48Examples of cases referred to in argument, or cited in such cases are: Hough, cited above; Shilman v. Ontario (Ministry of Community & Social Services), 1989 CanLII 167 (ON PSGB); DaSilva v. Ontario (Ministry of Health), 1997 CanLII 10281 (ON PSGB); Cardoza v Ontario (Ministry of Community Safety and Correctional Services), 2011 CanLII 86404 (ON PSGB); Murphy v. Ontario (Ministry of Transportation), 1999 CanLII 13876 (ON PSGB); Gaetano v. Ontario (Ministry of Municipal Affairs and Housing), 2000 CanLII 20352 (ON PSGB).

49In Hough, cited above, the Board discussed a fact situation where the employer considered a suspension non-disciplinary, but found it to have been objectively disciplinary. The Board found that it was a deficiency in the process that the supervisor had not sought an explanation from the employee before suspending him, citing general arbitral jurisprudence to the effect that all pertinent factors must be assessed by the employer before imposing discipline.

50In the Cardoza and DaSilva decisions, reference was made to Masters v. Ontario, cited above, where the court held that a duty of fairness is owed to the person accused, or respondent, in a sexual harassment investigation. That duty was found to consist primarily of a requirement that the person accused of harassment be aware of all the material allegations against him and be provided with an adequate opportunity to be heard prior to the making of the decision which significantly impacted his reputation and career. In circumstances where Mr. Masters had been given a detailed summary of the accusations against him, and the opportunity to reply orally and in writing before he was removed from his position, the Court found that there had been no breach of the duty to act fairly in the scope of the employer-employee relationship. In both the DaSilva and Cardoza decisions, this Board adopted a similar approach in regards to the terms and conditions of employment of excluded employees.

51In Da Silva, the Board held that the employer holds a fundamental duty to treat those accused of a serious breach of the Human Rights Code with fairness, whether the complaint is pursued under the Workplace Discrimination and Harassment Policy or by way of grievance. In Cardoza, the complainant faced more generalized allegations of harassment, and was similarly found to be owed a duty of fairness, as the allegations made against him were of a very serious nature and had significant potential for damaging his reputation and career. The same is true here; the allegations of conflict of interest made against Mr. Doyle had significant potential for damaging his reputation and career, and the findings against him resulted in his removal, by way of two reassignments, from a leadership role in land use planning for the economic centre of the province, to a peripheral research role.

52As discussed at some length in Masters, the history of affording procedural fairness is long, and rooted in the idea that the right of a person to be heard in his own defence is the most basic legal protection of all. In the case before me, as noted above, there was no meeting or discussion with Mr. Doyle at all before the decisions of which he complains were made. Further, there was no evidence of any reason why the employer did not afford Mr. Doyle any opportunity to address its concerns prior to finding that he was in conflict of interest, had been engaged in an outside undertaking, and that the situation could not be cured in his existing position. The employer might have come to the same conclusion after talking to Mr. Doyle, but he was owed, at the very least, an opportunity to know what the allegations were and to address them before the employer made a determination as serious as the one communicated in the letter of June 5, 2017.

53As the Court in Masters pointed out, quoting former Chief Justice Laskin in Nicholson v. Haldimand- Norfolk (Regional Municipality) Commissioners of Police, 1978 CanLII 24 (SCC), there is also the practical aspect to affording such an opportunity, for the employer who “would wish to be certain that it had not made a mistake in some fact or circumstance it deemed relevant to its determination.” It would have been prudent for the employer, in its own defence, to give the complainant the opportunity to explain his actions, so that it would be known whether there was disagreement or lack of clarity about the facts, and/or whether some common ground on what impact on the complainant’s job was appropriate could be found.

54Instead, similar to the situation in Cardoza, the employer cut itself off from very relevant information about the complainant’s view of the matter prior to making its decision that there was a conflict of interest involved. It is quite remarkable that a senior civil servant who had been entrusted with some of the most important responsibilities in land use planning in the province for decades, with no criticism of his performance, was not apprised of the employer’s concerns and proposed solution and asked what he had to say before he was sidelined. Even if the employer continued to believe that the publication of the article and the granting of the interview constituted a conflict of interest, it would have been able to avoid one of the basic causes of this litigation: that Mr. Doyle was not afforded even the most minimal of procedural protections – the right to explain his actions before a decision capable of seriously affecting his reputation and career was taken. Instead, all the important decisions had been made by the time Ms. Manson-Smith met with Mr. Doyle on June 6, 2017.

55In the circumstances, I find a breach of the duty of fairness owed to Mr. Doyle.

56I do not accept employer counsel’s submission that the process outlined in 2010, i.e. that Mr. Doyle should disclose to the employer any potential conflict of interest in advance, and seek direction from his Ethics Executive prior to expressing his views on land-use planning, was procedure enough in the circumstances. Firstly, it was a process with a different purpose than the procedural protection flowing from the duty of fairness, advance guidance, rather than an opportunity to know of allegations and respond before adverse decisions are made.

57Secondly, opinions about what does and does not constitute a conflict of interest or an outside undertaking likely to interfere with one’s duties to the Crown may vary widely. As in the facts before me, what a public servant thinks should be reported in advance, and what individual employer representatives may expect, can be sufficiently and legitimately different that the situation does not get addressed in advance through employee reporting.

58Further, although it may be likely that the employer took Mr. Doyle’s May 2017 email communicating the paper and the newspaper account of it as an admission of breaching the 2010 direction, breaching the directions and being in conflict of interest or engaging in an outside undertaking are not the same things. And coming to the conclusion that removal from active planning functions was the only possible solution was a quite different, far-reaching and career-altering determination. The fact that removing him from all planning responsibility was an option being considered, even on its own, called for affording Mr. Doyle an opportunity to know what the employer alleged, and to be given a fair opportunity to answer and provide his own explanation before final decisions were made.

59Employer counsel referred to a longstanding line of jurisprudence of the PSGB which has found that it is not a proper basis for a successful complaint to make a general claim of fairness, or to claim a term or condition of employment that would be more fair, in the complainant’s view, than the existing ones. Two examples of such cases are Kevin Ransome and The Crown in Right of Ontario (Ministry of Health and Long-Term Care), 2006 CanLII 42782 (ON PSGB) and Tim Garratt et al. and The Crown in Right of Ontario (Ministry of Health and Long-Term Care), 2005 CanLII 53194 (ON PSGB). In both cases, the complainants found their pay to be unfair in relation to either members of the bargaining unit, and/or peers whose promotions had occurred at a time which resulted in their pay being higher. The complaints were dismissed on the basis that the complainants were essentially claiming different terms and conditions in regards to their pay than the ones in place for their classification, i.e. terms which they considered more fair than the applicable ones. These were cases based on a finding that the terms and conditions of employment did not include the ones that the complainants were seeking. They were not cases based on a denial of procedural fairness such as this one, where the right to procedural fairness in circumstances such as these is a term and condition of employment.

b) Were the June 5 letter and transfer to a research position disciplinary?

60The complainant argues that the June 5 letter and resulting transfer were disciplinary, while the employer takes the opposite view.

61The employer asserted that the reassignment was simply a forward-looking solution to the conflict of interest created by the complainant’s knowing breach of directions. There were bona fide operational reasons for the transfer and the decision was not arbitrary, discriminatory or made in bad faith, in the employer’s view. Its evidence was given by Ms. Kate Manson-Smith, Assistant Deputy Minister of Local Government and Planning Policy for the Ministry of Municipal Affairs, who was responsible for the creation of the new position, in which Mr. Doyle reporting directly to her.

62From reading the newspaper article in question, Ms. Manson-Smith formed the view that Mr. Doyle had created a perception of a lack of objectivity, in that his actions could leave members of the public with the impression that the public service was not engaging in the important responsibility to engage with all stakeholders in an unbiased and neutral way. She noted that he used words suggesting that certain critics of the government’s policies had engaged in misleading and selective use of facts. It was her view that it is not the role of a professional public servant to offer such a public perspective on policy issues on which they work. She referenced media protocols where a specific person is designated as a spokesperson, so that the ministry’s response to the media can be considered and the appropriate professional, or other person, can be identified to respond, either to a specific inquiry or as part of a communications plan developed around policy matters.

63Ms. Manson-Smith explained Mr. Doyle’s removal from the floor with the planning team as an office space issue. She testified that someone else had been assigned to lead Mr. Doyle’s former team, that it made sense for that person to sit in the manager’s office in proximity to that team, and there were no other managers’ offices available on that floor. Ms. Manson-Smith said other staff were intended to be moved at a later date to the floor where Mr. Doyle was working, but as they were not reporting to her, she was not familiar with the details.

64As to why Mr. Doyle was removed from the usual reporting structure, through a Director, Ms. Manson-Smith’s evidence was that, at the time of these events, the director was new to the provincial policy branch, which was working at maximum capacity. It was her view that it did not make sense to broaden the scope of that director at the time, so the best solution was for Mr. Doyle to report to her directly.

65Concerning Mr. Doyle’s view that the work he was assigned was redundant, Ms. Manson-Smith’s evidence was that the work he was asked to do concerned issues of priority to the government that intersected with land use planning, that were within his expertise and would have complemented work being done by other ministries. She was of the view that the ministry has its own interest in those issues, that Mr. Doyle was well-suited to developing an analysis on them, and the position allowed him to contribute despite the conflict of interest he had created.

66I have had regard to the jurisprudence on the subject of what constitutes discipline, such as the Board’s decisions in Hough, Cardoza, cited above, and Kanga v. Ontario (Ministry of Health), 1986 CanLII 95 (ON PSGB), which also dealt with a disagreement over whether a transfer was disciplinary or not. These decisions affirm the idea that the fact that the employer does not consider an action disciplinary is not the end of the matter, if the effect on the employee is objectively disciplinary.

67Certain elements which are often associated with discipline, such as loss of pay, are not present in this fact situation. Nonetheless, almost everything else about the letter of June 5 and the subsequent transfer have the hallmarks of discipline. The letter clearly finds Mr. Doyle’s behaviour to have been culpable in that it asserts that he was aware of the direction from 2010, and nonetheless breached it, by not seeking direction before disseminating the May 2017 paper and consenting to an interview with a reporter from the Globe and Mail. Further, it finds that the dissemination of the paper constituted an outside undertaking and a conflict of interest which could not be cured in his current position. This clearly communicates that Mr. Doyle had engaged in unacceptable behaviour, which is being corrected by a permanent transfer.

68What followed was a demotion in every respect other than salary and classification.

69There was really no dispute of Mr. Doyle’s evidence that he was isolated and separated from the team he had worked with, mentored and supervised for upwards of 30 years. His responsibilities were drastically reduced. After many years in the senior level of planning managers, supervising teams from 8 to 30 planners, integrally involved in the major planning decisions for the most populous area of the province, Mr. Doyle found himself held outside the active planning work of the Ministry, with no colleagues, employees to supervise, and without access to the Ministry’s planning data base. Planning managers typically report to a Director, who reports to the Assistant Deputy Minister. He was removed from that structure, and a new position created, reporting to the Assistant Deputy Minister directly. Even if the employer is technically correct to dispute Mr. Doyle’s assertion that he was not qualified to do the research to which he was assigned, as it appears clear that Mr. Doyle is very adept at locating and martialling facts in an organized way, the assignment removed him from the usual work of a professional planner and the responsibilities and influence associated with that role.

70In short, I am persuaded by the evidence that the transfer was disciplinary in nature and would have been seen that way by colleagues who learned of it.

b) Was the complainant’s behaviour deserving of discipline?

71The employer’s reasons for its action towards Mr. Doyle are set out in the letter of June 5, 2017, and involve three separate conclusions that together resulted in the disciplinary transfer. These are the findings of conflict of interest, engagement in an outside undertaking, and breach of the 2010 instructions to seek direction before publicly expressing his views about land use planning matters, which will be dealt with in turn.

72Mr. Doyle’s position is that no discipline was called for, while the employer’s position is that the transfer was a non-disciplinary, permissible response to a finding of conflict of interest. The employer did not put forward evidence justifying the transfer as a disciplinary matter, but rather as a matter of directions to cure what it considered a conflict of interest, engagement in an outside undertaking that would interfere with the duties of Mr. Doyle’s former position, and a breach of the directions from 2010 in regards to publicly expressing his views on land use planning.

73Given the view that I take of the appropriate remedy for the breach of the duty of fairness, discussed below, it is not really necessary to address the question of whether the complainant’s actions deserved discipline. Nonetheless, questions that relate to the employer’s basis for the discipline are important to the parties’ arguments and the interests that were the basis of the decision above on the mootness motion, allowing this matter to go forward on the merits, and thus appropriate to deal with to the extent below.

Conflict of interest?

74The first of the disputed findings in the June 5, 2017 letter is that the complainant had placed himself in a position of conflict of interest. The second disputed finding, that he was engaged in an outside undertaking which would conflict with his duties to the Crown will be dealt with separately below, as it is a different, albeit related, allegation.

75The complainant invites a finding that he was not in conflict of interest, and thus did not deserve the finding of conflict, or the reassignment that followed. In his view, he was engaging in the requirements of his job and acting in accordance with his ethical responsibilities as a professional, rather than doing anything in conflict with his duties to the Crown or his profession, or improper in any respect. In sum, his case is based on the idea that there was no conflict either with his job duties or his obligations as a professional planner in what he did.

76The evidence in this case did not include evidence about the basis for the employer’s finding of conflict of interest. The only witness for the employer, Ms. Manson-Smith, was not the decision maker. In light of the evidence that is before me I cannot find that Mr. Doyle was in a conflict of interest in any usual sense of that term. Most basically there was absolutely no suggestion that Mr. Doyle had any personal, pecuniary or commercial interest that was engaged in his publication of the 2017 paper or granting the interview with the Globe and Mail. Thus, this is not a case where there is any suggestion of the classic kind of conflict of interest where a public servant is using a position of trust for personal gain, as in the dictionary definition relied on by complainant’s counsel, “A situation in which a person is in a position to derive personal benefit from actions or decisions made in their official capacity.”

77There is no evidence that Mr. Doyle’s loyalties were divided between public duties and personal interests as there was in Roshard v. St. Dennis, [2018] BCSC 1388; 2013 BCSC 1388, a case relied on by the complainant, where the allegation was that the mayor of a town in British Columbia had been using her office to advance her personal and potentially commercial interests, rather than devoting herself to the public interest. Instead, all of the evidence before me supports a finding that Mr. Doyle was single-mindedly pursuing the public interest by defending the government’s policies.

78As well, the evidence supports a finding that Mr. Doyle’s actions did not constitute a conflict of interest in the sense prohibited by his code of conduct as a professional planner. This was the evidence of Mr. Tony Usher, an expert witness called to give evidence on the content of Mr. Doyle’s duties as a professional. Mr. Usher is past president of the Ontario Professional Planners Institute (OPPI) and knew Mr. Doyle as a well-respected fellow member, but had not dealt with him as part of his consulting practice. In his opinion, Mr. Doyle was acting in compliance with the professional standards of the planning profession which are contained in the Code of Practice and Standards of Practice enacted under the authority of the Ontario Professional Planners Institute Act, 1994 (The OPPI Act). Although planners are not required by law to be registered with the OPPI, it is a requirement of many employers, and for qualification as an expert in situations such as giving evidence before the Ontario Municipal Board [OMB].

79Both Mr. Usher and Mr. Doyle are Registered Professional Planners (RPP), a title protected by the OPPI Act. Mr. Usher emphasized the primary responsibility of a professional planner to the public interest, an element of the Code of Practice which informs all the other provisions, something also embedded in the Planning Act. Mr. Usher highlighted a few of the detailed provisions of the Code as particularly relevant to whether the publication of the May 2017 paper would be considered a breach of Mr. Doyle’s professional obligations. For instance, it is a positive obligation of RPPs to inform all relevant parties and provide their professional recommendation in situations that may adversely affect the public interest. Further, the role of the RPP is to provide independent professional judgment or opinion which is balanced and fair, presented in a manner which allows the receiver to understand the basis and reasoning for the opinion.

80Mr. Usher described the statutory context flowing from the Planning Act in that development plans at the municipal level must conform to official provincial planning instruments, including the growth plan and green belt plans, which significantly affect the pace of development in the province. In writing his paper in 2017, Mr. Doyle provided publicly available information to support his view that the critiques of the government’s policy were unfounded, at a time when the policies were being reviewed. In Mr. Usher’s opinion, there was no confidential information disclosed in Mr. Doyle’s paper, something the employer did not dispute.

81Mr. Usher further explained that it is a requirement of an RPP to guard against conflict of interest or its appearance. Although the OPPI’s commentary on the subject acknowledges that there is no universally accepted definition of what constitutes a conflict of interest, it emphasizes the ethical principle underlying the concept as the responsibility to perform planning responsibilities freely, without influence which would impair the objectivity or independence of the planner’s opinion. Specific examples given include those where the planner or family members are in a position to potentially benefit from a certain outcome of a planning process, or where the planner’s personal or business relationships may place improper influence on the outcome of the planning process. The OPPI’s commentary states that a “conflict arises when the perception or potential for the ability of the planner to exercise the required independent professional judgment is undermined”.

82The evidence does not establish that the publication of the paper impaired Mr. Doyle’s ability to exercise independent professional judgment. The evidence sheds no light on whether the Deputy Minister who found Mr. Doyle to be in conflict was of the view that it did. The only evidence before the Board is that of Ms. Manson-Smith who was concerned that Mr. Doyle might be seen as biased because he characterized some information being circulated by critics of the government’s anti-sprawl policies as misleading.

83It is true that bias and conflict of interest may co-exist, but they are separate concepts. Bias carries the connotation of an unfair predisposition or prejudice against someone or something, while conflict of interest denotes a clash of interests. In the relevant context here, this would be a clash between personal and/or pecuniary interests and the public interest or duties to the Crown. Most importantly, there is no evidence that Mr. Doyle was either biased, in the sense of being unfairly predisposed to anyone, or in a position of conflict of interest.

84I have carefully considered Ms. Manson-Smith’s evidence about her concerns on reading Mr. Doyle’s paper and the newspaper article which described it, and the interview with Mr. Doyle. Although she was not the decision-maker, her evidence is the main insight available as to the employer’s concerns, beyond the content of the June 5 letter. The principal concern articulated by her was that Mr. Doyle’s actions could leave members of the public with the impression that the public service was not engaging with all stakeholders in an unbiased and neutral way. She then referred to media protocols and designated spokespeople, being of the view, as noted above, that it was not the role of professional public servants to offer a public perspective on policy issues on which they work. There are many elements involved in that view, but there are two which are particularly illustrative of the issues underlying this case.

85One is the view that a professional public servant should be neutral and unbiased towards all stakeholders. For his part, Mr. Doyle felt it was his duty to the public to defend the government’s anti-sprawl policies by providing objective facts that had been omitted from the publicity campaign of those who were not in favour of some of the government’s priorities in land-use planning. It is true that those who object to the priorities inherent in the policy direction that the government had chosen might characterize Mr. Doyle as not neutral. However, this has to be understood in the context of the fact that every aspect of land-use planning is the subject of competing interests and political positions, often hotly contested. It is the government’s role to consider those competing interests and positions and make choices in the public interest. Once made, those choices are unlikely to be seen as, or be, neutral to those who oppose them.

86In the political context, the neutrality of the public service means something very specific, which can be summarized as the requirement that public servants be neutral as between political parties and carry out the decisions of the government of the day. The employer does not suggest that Mr. Doyle lacked neutrality in that respect. It is quite clear that he was defending the policy of the government, based on planning work going back thirty years. Nor is there any suggestion that the facts and figures he cites in defence of the anti-sprawl policies were inaccurate, untrue or mistaken.

87Having carefully considered all the material before me, it would appear that the nub of the problem was not lack of neutrality or bias in the ordinary meaning of those terms. It was much more the concern expressed by Ms. Manson-Smith about whether it was Mr. Doyle’s role to be speaking to the press without having been designated to do so in the manner he did, and without having sought direction before doing so. In my view, this has two main aspects to it, concerns about control of messaging, including the timing of taking on critics of the government’s policies, and the breach of the 2010 directions. More will be said about the directions below, but I am persuaded that the evidence of Ms. Manson-Smith does not support a finding that Mr. Doyle was in conflict of interest or exhibiting bias in the sense of unfair prejudice, or providing skewed information.

Outside Undertaking?

88The second major allegation in the June 5 letter is that Mr. Doyle was engaged in an outside undertaking.

89The June 5 letter cites section 8(2) of Regulation 381/07, which provides that a public servant shall not become employed or engage in a business or undertaking outside his employment by the Crown if it would interfere with his ability to perform his or her duties to the Crown. The letter states that the public dissemination of his paper constituted an outside undertaking that interferes with the ability to perform Mr. Doyle’s duties to the Crown as Manager of the Planning Innovation section.

90Complainant’s counsel stresses that section 8 of Regulation 381/07 bears the title “Business, etc.”, suggesting that it should be interpreted in light of that term to mean something different than publishing a paper defending the government’s policies. Complainant’s counsel refers to the Ontario Court of Appeal’s decision in Rooney v. ArcelorMittal, 2016 ONCA 630 for the proposition that words of a statutory provision cannot be interpreted in isolation from their objective, in line with the current holistic approach to statutory interpretation. In the complainant’s view, the combination of the title referring to “Business” and the linking of employment and undertaking in the words of section 8 (2) of the regulation, should lead to a finding that the legislature intended something more substantial than the publication of facts and figures by the term “undertaking”.

91In the complainant’s submission, the context of the regulation has everything to do with business or private gain which could interfere with the public servant’s loyalty to the public interest. Further, he urges an understanding of the word “undertaking” to mean the assumption of obligations to someone or some entity which could conflict with the person’s job duties to the Crown. Counsel underlines that the facts of this case have nothing in common with cases where the grievor was using government resources to operate an outside business for his own profit, such as O.P.S.E.U. v Ontario (Ministry of Community & Social Services) (Aboutaeib/Carletti) [2012] LVI 3979-2, 2011 CarswellOnt 12929; 213 L.A.C. (4th) 336; 2011 CanLII 83707 (ON GSB).

92Counsel for the complainant observes that Mr. Doyle is at a loss as to how his actions interfere with his duty to the Crown. There is no evidence that the numbers on which his paper is based were biased or that any stakeholder asserted that they were. Nor is there any allegation that he was operating a private business, or that he was covertly operating on behalf of some stakeholder. Noting that Ms. Manson-Smith did not even attempt to speculate what the nature of the undertaking was that resulted in the finding in that respect in the June 5 letter, counsel argues that there is no evidence to support that finding. Nor is there evidence that there would inevitably be conflict between the complainant’s outside activity and implementation of policy in which he was involved, as in Association of Management, Administrative and Professional Crown Employees of Ontario v. Ontario (Ministry of Health and Long-Term Care), 2006 CanLII 30727 (ON GSB), relied on in Winnipeg (City) and United Fire Fighters of Winnipeg (IAFF, Local 867), Re, 122 CLAS 137, 2015 CarswellMan 23.

93Citing the decision of the House of Lords in Browne vs Dunn, (1893) 1893 CanLII 65 (FOREP), 6 R. 67, (H.L.), complainant’s counsel argues that the employer did not contradict Mr. Doyle on cross-examination or suggest to him how he was in conflict with his duties, or engaged in an outside undertaking. Counsel urges a finding that, not having done so, the employer should not now be allowed to impugn Mr. Doyle in this manner.

94By contrast, the employer urges an interpretation of s. 8 of Regulation 381/07 which would recognize that there are a myriad of outside activities in which public servants may be engaged, that are far too numerous and varied to warrant an attempt to define the word “undertaking” in the narrow way proposed by complainant’s counsel. Rather, in the employer’s view, the legislature’s use of the words “business”, “employment” and “undertaking” should each be given meaning, with undertaking being an open-ended term for activities other than employment or a business that could conflict with the job duties of a public servant.

95The word “undertaking” is a word with a range of meanings, always coloured by context. Here, the main context is the inclusion of the term in the Regulations entitled “Rules for Conflict of Interest”, and the qualifying phrase “would interfere with his ability to perform his duties to the Crown”. In this context, I agree with complainant’s counsel that the term “outside undertaking” should not be considered to be so broad as to include any activity, such as, “I undertake to eat a sandwich”, an example proposed for its absurdity during argument. Nor, at the opposite extreme, should it be given too narrow a definition or content not related to the content of the regulation, such as would be the case if one insisted on the sense of a legal undertaking between lawyers. And, as employer counsel stressed, it is futile to attempt an all-encompassing definition as the inquiry will always be very fact-specific.

96The materials before me illustrate a wide range of situations of alleged outside undertakings that may be engaged. In reported cases, cited in Appendix B, one finds, for example, a group of federal civil servants producing seminars on selling to the federal government (Threader); municipal fire investigation officers conducting fire investigations for the private sector (Winnipeg); a federal tax auditor who engaged in a sustained vitriolic campaign against metrification, the Charter of Rights, and the prime minister who espoused them (Fraser); a provincial bee inspector who was President of the Ontario Beekeepers’ Association (Halsall); and the use of government computers for a private mortgage business (Aboutaeid/Carletti).

97In brief anonymized summaries of determinations by Ontario Ethics Executives, posted on the website of Ontario’s Conflict of Interest Commissioner, Sidney Linden, relied on by employer counsel, cited in Appendix B, one finds other examples to illustrate the range of activities discussed as possible outside undertakings: a public servant who maintained a blog related to issues of professional interest (M18-16/18); a chair of a public body acting as an expert witness on behalf of a law firm not retained by the government (C12-12/13); the chair of a regulatory agency who was invited to serve on a committee to monitor and write a report on an election (C13-08/09); and a member of a public agency who was invited to take part in a steering committee whose mandate was in the same general area as the public agency (P01-17/18). Complainant’s counsel argues that there is not sufficient information in the summaries to provide enough facts or context for the Board to rely on these summaries as precedents.

98In any event, the fact situation here is not really like any of those in the material. Mr. Doyle saw his public commentary as part of his duty to the Crown as set out in his job description rather than “outside” it. But the concerns raised in a number of the cases referenced above are akin to those which appear to have caused the employer’s concern. For example, in Fraser, the Supreme Court of Canada approved the idea that it was appropriate to consider whether the outside behaviour would negatively impact public confidence that the public servant, a tax auditor, would offer impartial and judicious treatment, which seems related to Ms. Manson-Smith’s concern about perception. In that case, the public servant was critical of the government, which Mr. Doyle was not.

99Most importantly, the evidence before me offers no explanation of how Mr. Doyle’s defense of the government’s own anti-sprawl policies would conflict with his duties as Manager of Planning Innovation. In these circumstances, assuming without finding that Mr. Doyle’s activities were an outside undertaking, I do not find that it has been established that doing so would likely interfere with his duties to the Crown.

100The fact is, according to Mr. Doyle’s job description as Manager, Planning Innovation, that a prominent part of the purpose of his position was “to manage the process of policy direction to control urban sprawl.” It is not disputed that the paper disseminated in 2017 was in support of the government’s policies concerning the control of urban sprawl, given the known negative effects on health, the environment and strain on infrastructure. Further, Mr. Doyle’s job description shows that his duties included the development of internal and external communication, and his external contacts are detailed as involving frequent contact with a variety of stakeholders, including planning professionals, municipalities, land developers, lawyers, the general public and the media to explain or exchange information regarding land use planning related policy issues.

101Although Mr. Doyle had received direction in 2010 that was more specific than his job description on the subject of speaking publicly, I find this to be more relevant to the question of breach of those directions, rather than proof that Mr. Doyle had engaged in an outstanding undertaking or that it would interfere with his assigned duties to the Crown.

102I turn now to the third allegation in the June 5, 2017 letter: the failure to seek direction prior to publicly expressing views on land-use planning.

Breach of 2010 Directions?

103The employer’s reference in the June 5 letter to the fact that Mr. Doyle failed to seek guidance from his Ethics Executive, before publicly expressing views on planning matters, is essentially a finding that he was insubordinate. It is clear that Mr. Doyle did not seek guidance from his Ethics Executive or advise her in advance of his intentions to disseminate the paper. He did not dispute this, or that the directions from 2010 could have encompassed the dissemination of the paper in 2017. In cross-examination he acknowledged that the preparation and release of the paper in 2017 was not a run-of-the-mill part of his job, and that it was rare for a senior public servant to do as he did in publishing the paper.

104Nonetheless, the evidence is clear that it was part of the complainant’s job description to talk to a variety of people external to the government and that he regularly responded to inquiries from stakeholders and the media when he attended OMB hearings and made public presentations. It is the complainant’s view that the determinations contemplated by an Ethics Executive under section 65(8) of PSOA are to be directed solely to the question of conflict of interest. Given that he did not view himself as in conflict of interest, he did not consider that he was under an obligation to seek direction from his Ethics Executive. Moreover, as noted above, he considered it part of his job duties, and thus did not believe that it interfered with his duties to the Crown.

105The evidence establishes that Mr. Doyle spoke publicly many times since 2010, to the knowledge of his Director, including at a conference with the Assistant Deputy Minister present, without comment or censure from the employer. Taken literally, the direction would have required speaking to his Ethics Executive, the Deputy Minister, prior to any conversation with a stakeholder, the public or the media, which could have extensively interfered with his ability to do his day-to-day job duties. Mr. Doyle was of the view that his analysis and figures were not getting through to decision makers. Particularly, he felt that it had become urgent to alert the public as to the dangers of allowing sprawl, in order to set the record straight in response to efforts of some critics of the government’s policies to attribute the high cost of housing in Toronto to the province’s anti-sprawl policies. He was concerned that the inaccurate linkage between anti-sprawl policies and rising house prices in the Greater Toronto Area being promoted by critics of the government’s policy was gaining unwarranted acceptance, and needed to be answered directly.

106As noted above, the employer underlines that the 2010 directions were not a prohibition from speaking publicly on land use issues. Rather, what Mr. Doyle was told to do was to advise his Ethics Executive and seek direction beforehand. In the employer’s view, the cause of the current situation is that Mr. Doyle decided to ignore the instructions from his Ethics Executive.

107Counsel for the complainant refers to the decision of Arbitrator Leighton in Ottawa (City) and CIPP (Cooper), 2015 CanLII 108679 (ON LA) which discusses the elements necessary for a finding of insubordination, i.e., a clear order given by someone in authority over the person, which has then been disobeyed. I have used this as a convenient framework within which to consider this portion of the dispute.

108The complainant does not assert that his actions in 2017 were in compliance with the 2010 directions. It will be recalled that those directions were aimed at avoiding any future conflict of interest or potential conflict of interest, and required him to report any conflict of interest or potential conflict of interest, as well as to advise his Ethics Executive and seek direction before publicly expressing his views about land use planning matters, policies and processes. Nor does the complainant challenge the authority of the Ethics Executive to give direction, which is clearly granted by section 65 of the PSOA. Rather the complainant’s case is based on a three-pronged defense of his actions.

109The first element of Mr. Doyle’s defense is the assertion that the directions were only legitimate insofar as they dealt with conflict of interest. Since he believes there was no conflict of interest in either 2010 or 2017, he argues the directions were not applicable. Secondly, the complainant relies on the fact that the employer designed his job description to require him to deal with the public, which he did without objection many times without complaint from his superiors between 2010 and 2017. This amounts to a claim that the employer condoned his speaking publicly as part of his job description in the period in question. Thirdly, Mr. Doyle believes it is his right and obligation as an independent planning professional to give his opinion when it is necessary in the public interest, whether or not it is welcomed by the employer.

110As to the first portion of his defense, it is important to recall that the 2010 directions referred not just to conflict of interest, but also to potential conflict of interest, a much broader term. Under s 65 (5) (b) of the PSOA, the Ethics Executive’s mandate explicitly includes the authority to give directions to address a conflict of interest or potential conflict of interest in the case of a determination that there is either an actual or potential conflict of interest. Given the successful preliminary objections to the first set of complaints, no determination has been made by this Board as to the basis for the employer’s finding that there was a conflict of interest leading up to the 2010 directives, potential or otherwise. And section 65 (8) requires a public servant to comply with the directives of the Ethics Executive.

111It may well be that Mr. Doyle was under no obligation to report his activity as a conflict of interest or potential one, as there was no personal or pecuniary interest involved. Nonetheless, if the 2010 directions were still live in 2017, he was under an obligation to obey them as it can be seen that they were explicitly broader than the obligation to report potential or actual conflict of interest which is already a requirement under s 65 (3) of the PSOA.

112As to condonation, it could be found that the directives were not live, if the employer had, by conduct, given Mr. Doyle to understand that he was no longer required to seek direction for speaking publicly about his opinions concerning land use planning. It is true that the wording of the direction from 2010 encompassed much more of the complainant’s public activity than the employer had difficulty with between 2010 and 2017. That is to say, the evidence is clear that there was a whole range of public activity such as OMB attendances, training sessions and routine interaction with stakeholders and the media that the employer accepted as part of Mr. Doyle’s job description and did not suggest required prior clearance from his Ethics Executive. Nor was it disputed that much of the information in the May 2017 paper was part of Mr. Doyle’s presentations on those other occasions.

113As well, the 2010 directions leave room for interpretation in that a senior public servant such as Mr. Doyle would likely know that the Deputy Minister has many obligations which might well make it impractical to give day-to-day direction on routine aspects of planning work. If there was any reason to believe that Mr. Doyle lacked clarity about the difference between the more routine kind of public interaction and the dissemination of his paper to the press in 2017, I might be persuaded that he had not knowingly breached the 2010 directives or that they did not amount to a sufficiently clear direction to support an allegation of insubordination based on their breach.

114However, the evidence persuades me that Mr. Doyle was aware, as he frankly put it in his evidence, that this was “a different kind of apple”. That is, the more routine kind of public interaction to which the employer did not object between 2010 and 2017 was understood by both parties to be within the expectations of his job, but that the kind of commentary and seeking out of the press that occurred in May 2017 was not. I have no doubt that Mr. Doyle knew that his actions in 2017 would be seen as a repeat of the kind of publication the employer had objected to in 2009 and responded to with the 2010 directions. Mr. Doyle felt justified in proceeding in any event because he believed it was a necessary action in the public interest.

115As to the remaining element of Mr. Doyle’s defense concerning his failure to seek direction in advance of the publication of his paper in 2017, I accept that there may well be circumstances when the urgency of the public interest will justify “going public” even when the employer, or some of its representatives, would prefer not. And I also accept that the question of the level of urgency is something that each individual may evaluate differently. Even if Mr. Doyle was correct that his intervention in May 2017 was crucial to the public policy debate, it does not mean the employer is prohibited from objecting to public “messaging” in its name that it did not choose to put forward at that time and in the manner Mr. Doyle chose, without consulting his Ethics Executive.

116The May 2017 paper was inevitably associated with the fact that Mr. Doyle was a senior government planner. The paper includes a section which highlights Mr. Doyle’s role “at the epi-centre of provincial planning in the Greater Golden Horseshoe for almost 30 years – serving 9 provincial government administrations under all 3 parties”. Thus, this is not a situation of a public servant expressing concerns as a private individual, nor was that suggested by Mr. Doyle, who stressed that his job description allowed for public commentary.

117In all the circumstances, I find that Mr. Doyle knowingly breached the 2010 direction, which included the obligation to consult prior to making public expressions of opinion of the kind he published in May 2017.

118As noted, Mr. Doyle challenged the propriety of the directions as not addressing a conflict of interest, as there was none in his view. Nonetheless, I have not been persuaded that the direction was beyond the authority of the Ethics Executive either in that role, or simply as a managerial direction as to public messaging about land use planning. I accept that there may be situations of such urgency that it is not practical for a professional to consult a superior prior to speaking out, even if that is a breach of an employer direction. However, the evidence does not persuade me that the situation in the spring of 2017 was so urgent that there was no time to heed the direction in question, or that Mr. Doyle was entitled to do so with impunity. I appreciate that, given the history of this matter, seeking direction from the Ethics Executive may not have realistically been seen as just a request for a collegial chat. Nonetheless, it would have been an opportunity for Mr. Doyle to explain to the Deputy Minister directly the felt urgency of the matter, in light of his professional obligations.

119If he had been directed not to speak, Mr. Doyle would have had to make a choice, but it would have been a choice made after an opportunity for at least some exchange with the employer about the merits of proceeding to publish. Perhaps Mr. Doyle thought it unlikely he would have been given approval to proceed as he did, but it would have been an opportunity to see if a mutually acceptable route to that end could have been found.

120In any event, direction was not sought, and I am persuaded that the facts of this case would have justified some disciplinary response, but with a penalty significantly less severe than the one imposed. Given the fact that the parties did not make specific submissions about alternative penalty, and in light of the severance of the employment relationship, further comment about penalty is unwarranted in my view.

121Before concluding this section, it is appropriate to highlight that the protection of the independence of employed professionals is an area in which Mr. Doyle has been seeking systemic change within the Ministry for years. He is firmly of the view that professional planners should have the opportunity to provide objective, professional analysis and advice directly to decision makers without interference from non-planners. As noted above, his actions in 2017 were partially in response to his conclusion that the information contained in the 2017 paper, such as the data refuting claims that increased housing prices in the Greater Golden Horseshoe were caused by provincial anti-sprawl policies, was not getting through to the ultimate decision makers.

122I agree with Mr. Doyle that the independence and impartiality of professional advice is a critical part of the service that citizens have a right to expect from their public servants. However, this case illustrates very clearly that what constitutes impartiality can be the subject of significantly divergent opinion. This is especially true if one includes the possibility of perception of impartiality, as Ms. Manson-Smith did in her assessment of the situation. I am persuaded that Mr. Doyle’s presentation of undisputed facts in his 2017 paper represented precisely what he believes an impartial professional is employed to do. By contrast, Ms. Manson-Smith’s view of impartiality included the idea that the expression of pointed public disagreement with the critics of the government’s policy was incompatible with impartiality between stakeholders. The evidence warrants the inference that this was especially true in a situation where the public intervention was not subject to prior consultation with his superiors, which would have helped ensure that the ministry spoke in a coordinated manner, with timing that balanced the employer’s priorities and plans, as Mr. Doyle may not have been privy to all the considerations at play.

123As noted, the complainant has felt for many years that there are systemic issues within the Ministry which precluded him from directly providing his professional analysis and advice on the important land use planning issues of the day. Mr. Doyle’s view is that the current terms and conditions of employment are inadequate to the task of ensuring that government has unfettered, independent and impartial professional planning advice. Although that is beyond the scope of this decision, the idea that these are matters of high importance to all Ontarians was not disputed by the employer.

II. The Reprisal Complaint [Form 1A]: Was the reassignment a reprisal for reporting of wrongdoing?

124As noted above, Mr. Doyle filed a separate complaint to the effect that the June 5 letter and subsequent employer actions constitute an illegal reprisal for his 2010 report of wrongdoing to the Integrity Commissioner. In answer to this complaint, the employer argues that the reporting of wrongdoing which occurred in 2010 is too remote in time to have been the motivation for the employer’s actions in 2017. In her testimony, Ms. Manson-Smith denied that the reassignment to the research position was a reprisal for the reporting in 2010, although she was aware of it. It is the employer’s position, in light of the principle in Browne v. Dunn, cited above, that the complainant’s failure to put her on notice in cross-examination of its intent to contradict her denial, and give her the chance to comment on its intended evidence, removes the right to contradict her on this point in final argument. It is not disputed that neither Deputy Minister Leblanc, the author of the June 5 letter, nor Assistant Deputy Minister Manson-Smith were involved in 2010 with the situation surrounding Mr. Doyle’s disclosure of wrongdoing.

125Employer counsel argues that the facts in 2017 are fairly straightforward, and stand on their own, inviting a finding that it is more likely than not the decision was made because Mr. Doyle gave an interview contrary to the directive to seek guidance first, rather than the 2010 report of wrongdoing.

126In the employer’s view, to attribute the conflict of interest determination made shortly after the interview with the reporter in 2017 to a report of wrongdoing seven years earlier, when neither of the decision makers was involved in 2010, is “just a stretch”. Employer counsel refers to Mr. Doyle’s testimony to the effect that the investigation by the Integrity Commissioner found no wrongdoing, after which Mr. Doyle worked at his new position for seven years, as reason to find there is no basis for the inference of a reprisal in counsel’s view. As well, in cross-examination of Mr. Doyle, employer counsel explored the fact that Mr. Doyle had made submissions to Deputy Minister Leblanc in 2014 following the conclusion of the Integrity Commissioner’s investigation, suggesting he had not been subject to reprisal because of raising issues with the Deputy Minister at that time.

127Mr. Doyle relies on the overall record from 2010 including, but not limited to, the 2017 findings and the resulting actions which he sees as reprisal, rather than just the specific submissions following the investigation by the Integrity Commissioner. In his view, between 2010 and 2017, he was blacklisted, in the sense that his research was suppressed, he was not given access to the Minister, Deputy Minister, or to the Advisory Panel for the Co-ordinated Land Use Planning Review, chaired by David Crombie, which was reviewing the province’s plans, including the Greenbelt. As well, he is firmly of the view that his career advancement was negatively affected, he was not even given interviews for positions for which he was well qualified, and generally sidelined once he had complained to the Integrity Commissioner.

128Employer counsel submits the evidence about the complainant’s allegations of adverse employment consequences in the period between 2010 and 2017 is insufficient. As to the jobs involved in the promotional opportunities, counsel submits that there was no competition for one of them, and in the other two, Mr. Doyle received interviews and was not awarded the positions. Counsel emphasizes that there is no obligation to run competitions for managerial promotions, and argues that there is simply not enough evidence to conclude anything about the propriety of the outcome of those competitions. Further, counsel observes that no suggestion was put to Ms. Manson-Smith that she somehow made sure Mr. Doyle did not obtain the positions, either because he had earlier reported wrongdoing, or for any other reason. Counsel suggests that perhaps Mr. Doyle was not the most qualified person, or there were attributes other than planning expertise that determined the results for those jobs.

129In sum, employer counsel argues, there is no temporal proximity with the 2010 report of wrongdoing to make the employer’s actions in 2017 suspicious. The reassignment was prospective in nature given the conflict of interest determination, and there were bona fide business reasons to move Mr. Doyle off the planning floor to make room for the new manager taking over his position.

130By contrast, Mr. Doyle sees the time sequence as closely connected with the events of 2010, as they were still unresolved at the time of the 2017 reassignment, as the complaints had been adjourned for several years, and the Board’s decision had not yet issued. Complainant’s counsel emphasizes case law which holds that if the adverse employment consequence is arbitrary, and there is insufficient explanation or justification, the onus on the employer to makes a credible explanation for the move is higher. See for instance, Campbellford Memorial Hospital and CUPE, Local 2247, 1990 CarswellOnt 4124; 1990 CanLII 12943 (ON LA), [1990] OLAA No. 98, 14 LAC (4th) 129.

131Counsel for the complainant rejects the suggestion that he failed to give the employer’s witness a chance to comment on the complainant’s reprisal allegations. He refers to his cross-examination on the only reason for the move given by Ms. Manson-Smith, which was the idea that Mr. Doyle had exhibited bias in his paper and interview with the media. It is the complainant’s position that the employer’s evidence did not even attempt to explain how giving Mr. Doyle a meaningless job was remedial, related to the finding of conflict of interest, or would make him any less biased if they truly felt he was.

132Complainant’s counsel submits that the employer has made an inadequate defence in this case in light of its onus to reply once the complainant has made out a prima facie case, as in the Board’s decision in Murphy v. Ontario (Ministry of Transportation), 1999 CanLII 13876 (ON PSGB), which dealt with allegations that a transfer of a managerial employee was arbitrary, discriminatory and in bad faith. Complainant’s counsel emphasizes Ms. Manson-Smith’s evidence about the reasons for the transfer was entirely based on her perception of bias, rather than the reasons given in the June 5 letter, which is a further reason for concern about the employer’s motives, in the complainant’s view.

133The question of causation is a factual one, and each case in the jurisprudence is very fact specific. The legal question is whether it is more likely than not that the employer’s actions in 2017 were motivated by the complainant’s report of wrongdoing in 2010.

134As noted above, and recounted in more detail in the Board’s 2017 decision on Mr. Doyle’s earlier complaints, he made a disclosure of wrongdoing to the Integrity Commissioner in 2010 as a result of his view that there had been improper political or stakeholder influence in the decision to remove him from the Simcoe files. The employer’s actions in removing Mr. Doyle from the Simcoe files while leaving him in charge of planning matters for a huge portion of the rest of the province, may have been explored in the Integrity Commissioner’s confidential investigation, but there is no evidence about the employer’s rationale for those actions before this Board. The Integrity Commissioner did not publicize a report under s. 130 of the PSOA or make findings of wrongdoing. This Board is not privy to the Integrity Commissioner’s report, and both parties were circumspect in limiting their references to what took place during the investigation which is intended to be confidential.

135Given the success of the employer’s preliminary objections, the original complaints to the PSGB did not proceed to their merits, so the facts of those matters were limited to what was set out in the parties’ pleadings, rather than the fuller evidentiary record that a hearing on the merits might have entailed. And this decision does not deal with the issues raised by those earlier complaints as they were dismissed. In making the findings necessary to this decision, the Board is cognizant that there is much about the progress of Mr. Doyle’s employment in the period in question that is not in evidence. Nonetheless, the current complaints are integrally related to the earlier complaints and the events that caused Mr. Doyle to file them, and his continued sense of grievance that he was dealt with unfairly and improperly from the start of the restrictions on his involvement in the Simcoe files.

136Obviously, the Board can only deal with the evidence and argument put before it, in light of the relevant jurisprudence. In this respect, the Board summarized the case law on reprisal as follows in the recent decision of Ronkai v Ontario (Community Safety and Correctional Services), 2017 CanLII 77179 (ON PSGB):

The case law on reprisal is consistent to the effect that the burden of proof is on the employer to show that the reasons given for the contested actions were the true reasons, and were not intended to punish or “get back at” the complainant for the protected activity. In this case, the protected activity is reporting wrongdoing to the Ethics Executive. In several of the cases cited, the protected activity was seeking the protection of the Occupational Health and Safety Act, or exercising rights under other statutes, such as the Labour Relations Act, and the Environmental Protection Act. The case law acknowledges that reprisals are rarely practiced in the open, and that valid reasons may exist at the same time, and be used as a cover or pretext for illegal ones. Inferences from all of the evidence may be drawn, where necessary. If an explanation from the employer is unreasonable, unfair, or out of line with a rational response in the circumstances, concern about whether the action complained of is a reprisal will be increased.

Nonetheless, the issue is not whether there was “just cause” for the action taken, or whether the complainant agreed with the choices made by the employer. The burden of proof remains that of the balance of probabilities, rather than the criminal standard of “beyond a reasonable doubt”. Mere possibility of an intent to punish a complainant for engaging in protected activity is not enough to base a finding that there has been reprisal. See the following cases filed by the employer, which I find representative of the state of the law on the subject of reprisals in various employment contexts: York (Municipality), [2002] OLRB Rep. May/June 481 (June 10, 2002) (Herlich); Grifferty and The Crown in Right of Ontario (Ministry of Government Services), GSB No. P-2010-2240 (October 16, 2012) (Devins); Lyndhurst Hospital, [1997] OLRB Rep. July/August 616 (August 15, 1997) (O'Neil); Hy's Steak House, [1990] OLRB Rep. February 163 (February 20, 1990) (Gray); Sobey's Inc., [1996] O.L.R.D. No. 3565 (October 7, 1996) (Whitaker); Noble v. York University, 2010 HRTO 878, (April 22, 2010) (Gottheil); Jones v. Amway of Canada, [2002] O.J. No. 1504, 159 O.A.C. 331 (Ont. S.C.J.).

137The prohibition against reprisals for disclosing wronging and the reverse onus for reprisal complaints under Part VI of the PSOA are set out in section 139 and 140(13), respectively.

138Similar to the situation in the Ronkai decision, I find that Mr. Doyle experienced negative employment consequences that meet the definition of reprisal under s. 139(2) of PSOA. His removal from all involvement with planning work, being relieved of all managerial functions, and his isolation from the planning team, albeit with no loss in pay, qualifies as a negative employment consequence. It is not in dispute here that Mr. Doyle was acting in compliance with the statute in 2010 in reporting wrongdoing to the Integrity Commissioner. The issue in this case is whether management’s actions were taken because he reported wrongdoing. The negative employment consequence happened after the reporting of wrongdoing, so it is temporally possible for there to have been a causal connection. Further, as the complainant argues, the issues surrounding the reporting of wrongdoing were still very much alive in 2017, as the allegation that the earlier reassignments were disciplinary reprisals had not yet been resolved.

139The complainant’s argument is essentially that the letter of June 5, and the reassignment that followed, were at least in part to punish Mr. Doyle for the report of wrongdoing made in 2010. Accepting this argument requires a finding that the expressed reason for the action at that time, the paper and newspaper interview which the employer had only become aware of a short time before, was essentially a pretext for the real motive, which the complainant believes was to further punish him for going to the Integrity Commissioner.

140The complainant sees hallmarks of motivation to effect a reprisal in the lack of procedural fairness, and the lack of evidence of any substantial bona fide justification for the June 2017 transfer out of all managerial involvement in planning functions. If it were a bona fide finding of conflict of interest, counsel submits that one would have expected an investigation prior to the finding, and a warning that if Mr. Doyle did it again, he would be fired. In counsel’s submission, there were several more credible steps the employer could and would have taken if the motivation was as the employer asserts. Moreover, counsel for the complainant queries why, if the employer was concerned about Mr. Doyle’s access to the press, leave him researching driverless cars, since he could have gone to the press about that. Further, in counsel’s view, there was nothing remedial of any conflict of interest in the reassignment. Counsel observes that the saving grace would have been if the employer had sat down with Mr. Doyle to explain what he did wrong and ask him to collaborate on a solution. Since this was never done, and given the arbitrary nature of what was done, the inference ought to be that the actions were a reprisal, in the complainant’s view.

141I have carefully considered the facts in light of the arguments set out above. I have concluded that the evidence is not sufficient to ground an inference that the 2017 letter and removal of managerial functions was motivated by the 2010 report of wrongdoing to the Integrity Commissioner. In my view, the reasons suggested to base that inference, such as the inadequacy of the procedure adopted prior to the finding, and the lack of adequate grounds to justify the ostracization of Mr. Doyle, are supportive of the other findings in this decision, but do not warrant the suggested inference of a causal connection to the report of wrongdoing seven years earlier.

142There is really no evidence to connect Deputy Minister Leblanc or Assistant Deputy Minister Manson-Smith or the job competition decisions with the report of wrongdoing. There is only the timing after the reporting. However, the length of the intervening time - seven years - undermines the justification for the inference the complainant claims. The evidence persuades me that it is more likely than not that the complainant’s choice in giving an interview without seeking direction first, activity very similar to that in 2009, as discussed above, was the actual reason for the employer’s response in 2017.

Remedy

143The breach of the complainant’s terms and conditions of employment found above is the duty of fairness owed him by the employer. Given the negative reputational impact of the findings of May 2017, it was not a minor misstep to move to the stage of a conclusion of conflict, and a career altering transfer, without affording the complainant a chance to defend himself.

144Since Mr. Doyle was afforded no procedure which allowed him to explain why he did not consider his actions in May 2017 to be a conflict of interest or an outside undertaking, it is impossible to know what would have been the outcome had his view of the matter been considered prior to making the disputed findings. The goal of all legal remedies is to return the complainant to the position he would have been in had the breach not occurred. I find that the way to do that in all the circumstances of this case, is to declare that Mr. Doyle was not in a conflict of interest in May 2017, nor was he engaged in an outside undertaking that would likely have interfered with his duties as Manager of Planning Innovation, and to direct that those findings and the subsequent disciplinary transfer be removed from his employment record.

145As noted above, employer counsel argued that no remedy should include directing a new process prior to finding of conflict of interest or a withdrawal of the finding of conflict of interest, as this would be tantamount to creating new conditions of employment, something beyond the Board’s jurisdiction. Counsel submits that general remedies are not appropriate because of the individual contracts of employment for managers, but more specifically for conflict of interest matters, each ministry may have a different process and Ethics Executives and circumstances vary.

146I agree with the employer that more detailed directions to the employer are not warranted as a remedial matter in this case, particularly as there is no evidence of what other Ethics Executives have adopted as procedure before determining that any public servant is in conflict of interest. However, it is anticipated that the employer will heed the clarification above concerning the duty of fairness as a term and condition of employment, and afford other public servants the opportunity both to be apprised of the allegations against them and be afforded an opportunity to be heard prior to determinations that can negatively affect career and/or reputation.

147Given the Board’s practice and jurisprudence as explained in cases such as Cardoza, cited above, this is not an appropriate case for costs. Nor do I find this to be a case where an apology would be a necessary or effective measure to put the complainant in the position he would have been if no breach had occurred.

148For the reasons set out above, the first complaint is hereby allowed in part, to the extent indicated above, and the reprisal complaint is dismissed.

Dated at Toronto this 26th day October, 2018.

Appendix A

Excerpts from statutes and Regulations

From the Public Service of Ontario Act, 2006

Questions for Ethics Executive

65 (1) A public servant or former public servant may request that his or her Ethics Executive determine a question about the application of conflict of interest rules to the public servant or former public servant. 2006, c. 35, Sched. A, s. 65 (1).

Same

(2) A supervisor of a public servant may request that the public servant’s Ethics Executive determine a question about the application of conflict of interest rules to the public servant. 2006, c. 35, Sched. A, s. 65 (2).

Duty to notify

(3) If a public servant or a former public servant has personal or pecuniary interests that could raise an issue under the conflict of interest rules that apply to him or her, the public servant or former public servant shall notify his or her Ethics Executive. 2006, c. 35, Sched. A, s. 65 (3).

Inquiries

(4) The Ethics Executive may make such inquiries as he or she considers appropriate in response to a request, a notification or where the Ethics Executive has concerns that a conflict of interest rule has been or is about to be contravened by a public servant or former public servant. 2006, c. 35, Sched. A, s. 65 (4).

Determinations and directions

(5) An Ethics Executive shall,

(a) make a determination with respect to any matter that is brought to the attention of the Ethics Executive under subsections (1) to (3) or that is the subject of inquiry under subsection (4); and

(b) in the case of a determination that there is a conflict of interest or potential conflict of interest, give the public servant or former public servant directions, if any, that the Ethics Executive considers appropriate to address the conflict of interest or potential conflict of interest. 2006, c. 35, Sched. A, s. 65 (5).

Compliance with direction

(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).

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.

PART VI

DISCLOSING AND INVESTIGATING WRONGDOING

Interpretation

108. (1) In this Part,

“wrongdoing” means,

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

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

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

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

Disclosure, procedures

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

Directives, Public Service Commission

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

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

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

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

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

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

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

Same

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

Interpretation

Protection from Reprisals

No reprisals

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

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

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

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

(d) acted in compliance with this Part; or

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

Same

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

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

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

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

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

Complaint about reprisal

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

Public servant not subject to collective agreement

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

From ONTARIO REGULATION 378/07

Complaint about a disciplinary measure

3. (1) A public servant who is aggrieved by the imposition of a disciplinary measure under section 34 of the Act, other than dismissal for cause, may file a complaint about the disciplinary measure with the Public Service Grievance Board,

(a) if the public servant is eligible under section 5 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. O. Reg. 378/07, s. 3 (1).

(2) Subsection (1) does not affect the right of a public servant 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. 3 (2).

Complaint about a working condition or a term of employment

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. O. Reg. 378/07, s. 4 (1).

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

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

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

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

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

5. The compensation provided or denied to a public servant as a result of the evaluation of his or her performance. O. Reg. 378/07, s. 4 (2).

(3) Subsections (1) and (2) do not affect the right of a public servant 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. 4 (3).

From ONTARIO REGULATION 381/07

CONFLICT OF INTEREST RULES FOR PUBLIC SERVANTS (MINISTRY) AND FORMER PUBLIC SERVANTS (MINISTRY)

PART I

RULES FOR PUBLIC SERVANTS WHO WORK IN A MINISTRY

Interpretation

Definitions

1. In this Part,

“confidential information” means information that is not available to the public and that, if disclosed, could result in harm to the Crown or could give the person to whom it is disclosed an advantage;

“gift” includes a benefit of any kind;

Application

2. This Part applies to every public servant who works in a ministry. O. Reg. 381/07,

s. 2.

Prohibited Conduct

Benefiting self, spouse or children

3. (1) A public servant shall not use or attempt to use his or her employment by the Crown to directly or indirectly benefit himself or herself or his or her spouse or children. O. Reg. 381/07, s. 3 (1).

(2) A public servant shall not allow the prospect of his or her future employment by a person or entity to detrimentally affect the performance of his or her duties to the Crown. O. Reg. 381/07, s. 3 (2).

Disclosing confidential information

5. (1) A public servant shall not disclose confidential information obtained during the course of his or her employment by the Crown to a person or entity unless the public servant is authorized to do so by law or by the Crown. O. Reg. 381/07, s. 5 (1).

(2) A public servant shall not use confidential information in a business or undertaking outside his or her work for the Crown. O. Reg. 381/07, s. 5 (2).

(3) A public servant shall not accept a gift directly or indirectly in exchange for disclosing confidential information. O. Reg. 381/07, s. 5 (3).

Giving preferential treatment

6. (1) When performing his or her duties to the Crown, a public servant shall not give preferential treatment to any person or entity, including a person or entity in which the public servant or a member of his or her family or a friend has an interest. O. Reg. 381/07, s. 6 (1).

(2) When performing his or her duties to the Crown, a public servant shall endeavour to avoid creating the appearance that preferential treatment is being given to a person or entity that could benefit from it. O. Reg. 381/07, s. 6 (2).

(3) A public servant shall not offer assistance to a person or entity in dealing with the Crown other than assistance given in the ordinary course of the public servant’s employment. O. Reg. 381/07, s. 6 (3).

Engaging in business, etc.

8. A public servant shall not become employed by or engage in a business or undertaking outside his or her employment by the Crown in any of the following circumstances:

9. If the public servant’s private interests in connection with the employment or undertaking could conflict with his or her duties to the Crown.

10. If the employment or undertaking would interfere with the public servant’s ability to perform his or her duties to the Crown.

11. If the employment is in a professional capacity and is likely to influence or detrimentally affect the public servant’s ability to perform his or her duties to the Crown.

Participating in decision-making

9. (1) A public servant shall not participate in decision-making by the Crown with respect to a matter that the public servant is able to influence in the course of his or her duties if the public servant could benefit from the decision. O. Reg. 381/07, s. 9 (1).

(2) Subsection (1) does not apply if the public servant obtains the prior approval of his or her Ethics Executive to participate in decision-making by the Crown with respect to the matter. O. Reg. 381/07, s. 9 (2).

(3) A public servant who, in the course of his or her employment in a ministry, is a member of a body or group shall not participate in, or attempt to influence, decision-making by the body or group with respect to a matter if the public servant could benefit from the decision or if, as a result of the decision, the interests of the body or group could conflict with the interests of the Crown. O. Reg. 381/07, s. 9 (3).

(4) A public servant described in subsection (3) shall inform the body or group if the circumstances described in that subsection exist. O. Reg. 381/07, s. 9 (4).

Matters That Might Involve the Private Sector

Interpretation

10. (1) Sections 11 and 12 apply to every public servant who works in a ministry, who routinely works on one or more matters that might involve the private sector and who has access to confidential information about the matter obtained during the course of his or her employment by the Crown. O. Reg. 381/07, s. 10 (1).

(2) In this section and in sections 11 and 12,

“matter that might involve the private sector” means a matter,

(a) that relates to services currently provided under a program of the Crown or by a public body, an agency of the Crown or a corporation controlled by the Crown with respect to which it is possible that a private sector entity will provide all or part of the financing for the services or will provide some or all of the services, and

(b) that has been referred to a ministry, a public body or an agency of the Crown by the Executive Council or a member of the Executive Council for review or implementation. O. Reg. 381/07, s. 10 (2).

PART II

RULES FOR FORMER PUBLIC SERVANTS WHO WORKED IN A MINISTRY

Interpretation

Definition

14. In this Part,

“designated senior position” means any of the following positions:

1. The Secretary of the Cabinet.

2. Deputy minister, associate deputy minister or assistant deputy minister.

3. A position that is classified under subsection 33 (1) of the Act as SMG 2, XOFA 1, XOFA 2, ITX 2, ITX 3 or ITX 4. O. Reg. 381/07, s. 14.

Application

15. (1) This Part applies with respect to every former public servant who, immediately before he or she ceased to be a public servant, worked in a ministry. O. Reg. 381/07, s. 15 (1).

Prohibited Conduct

Seeking preferential treatment, etc.

16. A former public servant shall not seek preferential treatment by, or privileged access to, public servants who work in a minister’s office, a ministry or a public body. O. Reg. 381/07, s. 16.

Disclosing confidential information

17. (1) A former public servant shall not disclose confidential information obtained during the course of his or her employment by the Crown to a person or entity unless the former public servant is authorized to do so by law or by the Crown. O. Reg. 381/07, s. 17 (1).

(2) A former public servant shall not use confidential information in a business or undertaking. O. Reg. 381/07, s. 17 (2).

Restriction on lobbying

18. (1) This section applies to a former public servant who, immediately before ceasing to be a public servant, was employed in a designated senior position. O. Reg. 381/07, s. 18 (1).

(2) For 12 months after ceasing to be a public servant, the former public servant shall not lobby any of the following persons on behalf of a public body or another person or entity:

1. A public servant who works in a ministry or public body in which the former public servant worked at any time during the 12 months before he or she ceased to be a public servant.

2. The minister of any ministry in which the former public servant worked at any time during the 12 months before he or she ceased to be a public servant.

3. A public servant who works in the office of a minister described in paragraph 2. O. Reg. 381/07, s. 18 (2).

Restriction on employment, etc.

19. (1) This section applies to a former public servant who, immediately before ceasing to be a public servant, was employed in a designated senior position and who, at any time during the 12 months before he or she ceased to be employed as a public servant, in the course of his or her employment as a public servant,

(a) had substantial involvement with a public body or another person or entity; and

(b) had access to confidential information that, if it were to be disclosed to the public body, person or entity, could result in harm to the Crown or could give the public body, person or entity an unfair advantage in relation to one or more third parties. O. Reg. 381/07, s. 19 (1).

(2) For 12 months after ceasing to be a public servant, the former public servant shall not accept employment with the public body, person or entity or serve as a member of the board of directors or other governing body of the public body, person or entity. O. Reg. 381/07, s. 19 (2).

Restriction re certain transactions

20. (1) This section applies to a former public servant who, when he or she was a public servant working in a ministry, advised the Crown about a particular proceeding, negotiation or other transaction. O. Reg. 381/07, s. 20 (1).

(2) The former public servant shall not advise or otherwise assist any public body or any other person or entity in connection with the particular proceeding, negotiation or other transaction until the Crown ceases to be involved in it. O. Reg. 381/07, s. 20 (2).

(3) Despite subsection (2), the former public servant may continue to advise or otherwise assist the Crown in connection with the particular proceeding, negotiation or other transaction. O. Reg. 381/07, s. 20 (3).

Appendix B

Authorities referred to by the parties

For the Preliminary Motion

Referred to on behalf of the employer

1. Mously, Mike and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), PSGB No. P-2010-0433; 2010 CanLII 81436 (ON PSGB);

2. Stephane Dubuc v. Ministry of Community Safety and Correctional Services, OLRB No. 3419-10-OH, 2011 CanLII 46615 (ON LRB);

3. Ontario Public Service Employees Union (Jeff Hincks) v. Complex Services Inc. c.o.b. as Casino Niagara, Mark Fortuna, Earl Carlsen, OLRB No. 2395-01-OH, 2003 CanLII 38351 (ON LRB);

4. Kevin Ransome and The Crown in Right of Ontario (Ministry of Health and Long-Term Care), PSGB Nos. P2-2005-2314, P-2005-2786; 2006 CanLII 42782 (ON PSGB);

5. Tim Garratt et al. and The Crown in Right of Ontario (Ministry of Health and Long-Term Care), PSGB No. P-2003-1670; 2005 CanLII 53194 and 53195 (ON PSGB);

6. Robert Younger and The Crown in Right of Ontario (Ministry of the Environment), PSGB No. P-2006-2458; 2007 CanLII 30471 (ON PSGB);

7. Nelson Cardoza and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), PSGB No. P-2009-1510; 2011 CanLII 86404 (ON PSGB);

8. Re Lajeunesse, 2017 SCC 24;

9. Jonathan and Holly Wallace. and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2015 CanLII 32427 (ON PSGB);

10. Bill Gibson and The Crown in Right of Ontario (Ministry of the Attorney General), 1999 CanLII 32153 (ON PSGB);

11. Ontario Liquor Board Employees’ Union.(Berry) v Ontario (Liquor Control Board of Ontario), 2004 CanLII 55309 (ON GSB);

12. Borowski v. Canada (Attorney General), [1989] 1 SCR 342, 1989 CanLII 123 (SCC).

Referred to on behalf of the complainant:

13. Doyle v Ontario (Ministry of Municipal Affairs), 2017 CANLII 52705 (ON PSGB);

14. Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 SCR 1130;

15. Re Liquor Control Board of Ontario et al and Ontario Liquor Board Employee’s Union et al 1980 CanLII 1857 (ON HCJ), [1980] 29 O.R. (2d) 705;

16. Berryman, J, Mitigation, Apology and the Quantification of Non-Pecuniary Damages. Journal of Human Development and Capabilities, 2014;

17. Fukudo-Parr, Sakido, et al. The Power of Numbers: A Critical Review of Millennium Development Goal Targets for Human Development and Human Rights. Journal of Human Development and Capabilities, 2014;

18. Apology Act, 2009, S.O. 2009, c. 3;

19. Lee v. Ontario (Ministry of Community Safety and Correctional Services), 2011 CanLII 49517 (ON PSGB);

20. Hough v. Ontario (Ministry of Community and Social Services), 1984 CanLII 37 (ON PSGB);

21. Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] SCR 1120, 2000 SCC.

22. Ilha v. Ontario (Health and Long Term Care), 2016 HRTO 1411;

23. Sandhu v. Regional Municipality of Peel (Police Services Board), 2017 HRTO 1221;

24. MacDonald and Ontario (Ministry of Community Safety and Correctional Services), Re, 2014 CarswellOnt 13;

25. Stringer v. Treasury Board (Department of National Defence) 2014 PSLRB 5;.

26. Brodsky Gwen, Shelagh Day and Frances Kelly. The Authority of Human Rights Tribunals to Grant Systemic Remedies, 6 Can J Hum Rts 1, 2017;

27. Cornish Mary, and Suzanne Lopez Changing the Workplace Culture Through Effective Harassment Remedies, 3 Canadian Lab & Emp L.J. 1995;

28. Ontario Human Rights Commission v. Ontario (Correctional Services), 2002 CanLII 45619 (ON HRT);

29. Hunt vs Carey Canada Inc. 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959; 1990 CanLII 90 (SCC).

For the Merits

On behalf of the complainant

30. Roshard v. St. Dennis [2018] BCSC 1388; 2013 BCSC 1388;

31. Rizzo & Rizzo Shoes Ltd. [1998] 1 SCR 27, 1998 CanLII 837 (SCC);

32. Roonev v. AcelorMittal S.A., 133 OR (3d) 387.; 2016 ONCA 630;

33. Definition: Conflict of Interest, Oxford English Dictionary, https://en.oxforddictionaries.com/definition/conflict of interest

34. Threader v Canada (Treasury Board,) 1986 CanLII 6861 (FCA), [1987] 1 FCJ No. 411, 1 FC 41;

35. Winnipeg (City) and United Fire Fighters of Winnipeg (IAFF, Local 867), Re, 122 CLAS 137, 2015 CarswellMan 23;

36. Fraser v PSSRB, 1985 CanLII 14 (SCC), [1985] 2 SCR 455, 23 DLR (4th) 122.; 1985 CanLII 14 (SCC);

37. O.P.S.E.U. v Ontario (Ministry of Agriculture, Food, & Rural Affairs), [2009] OGSBA No. 31, 181 LAC (4th) 362.; 2009 CanLII 15420 (ON GSB);

38. O.P.S.E.U. v Ontario (Ministry of Community & Social Services) (Aboutaeib/Carletti) [2012] LVI 3979-2, 2011 CarswellOnt 12929; 213 L.A.C. (4th) 336; 2011 CanLII 83707 (ON GSB);

39. Campbellford Memorial Hospital and CUPE, Local 2247, 1990 CarswellOnt 4124; 1990 CanLII 12943 (ON LA), [1990] OLAA No. 98, 14 LAC (4th) 129;

40. Waterloo Regional Board of Commissioners of Police and Waterloo Regional Police Association, Re,1986 CarswellOnt 4062, 2 CLAS 1;

41. Jones v Amway of Canada, Ltd. [2001] OHRBID No. 9, 2001 CarswellOnt 5753; 2001 CanLII 26217 (ON HRT) 5753;

42. Cardoza v Ontario (Ministry of Community Safety and Correctional Services), PSGB No. P-2009-1510; 2011 CarswellOnt 14003 (OPSGB); 2011 CanLII 86404 (ON PSGB);

43. Masters v. Ontario, 1994 CanLII 10571 (ON SC), 115 D.L.R. (4th) 319, 18 O.R. (3d) 551 (Divisional Court).

On behalf of the Employer

44. C. Murphy and The Crown in Right of Ontario (Ministry of Transportation), PSGB No. P/0017/92 , 1999 CanLII 13876 (ON PSGB);

45. Bourgeault v Ontario (Community Safety and Correctional Services), 2013 CanLII 84294 (ON PSGB);

46. Ottawa (City) v Civic Institute of Professional Personnel, 2015 CanLII 108679 (ON LA);

47. Ontario Public Service Employees Union (Grifferty) v Ontario (Government Services), 2012 CanLII 67527 (ON GSB);

48. Browne v. Dunn (1893) 1893 CanLII 65 (FOREP), 6 R. 67, (H.L.);

49. Kanga v. Ontario (Ministry of Health), 1986 CanLII 95 (ON PSGB);

50. Ronkai v Ontario (Community Safety and Correctional Services), 2017 CanLII 77179 (ON PSGB);

51. Neil Haines v. Cameron Steel Inc., 2011 CanLII 2238 (ON LRB);

52. http://www.coicommissioner.gov.on.ca/2015/06/17/case-summaries/

• anonymized summaries from selected decisions of Ethics Executives.