Grievance before Ontario Labour Relations Board
28.10 (1) A Crown employee to whom subsection 28.9 (1) applies and who is not entitled to have the matter dealt with by final and binding arbitration may file a written grievance with the Ontario Labour Relations Board. 1993, c. 38, s. 63 (5). Inquiry by labour relations officer (2) The Board may authorize a labour relations officer to inquire into the grievance and, if it does so, the officer shall, (a) inquire into the grievance forthwith; (b) endeavour to effect a settlement of the matter; and (c) report the results of the inquiry and endeavours to the Board. 1993, c. 38, s. 63 (5). Inquiry by Board (3) If a labour relations officer is unable to effect a settlement of the matter, or if the Board in its discretion dispenses with an inquiry by a labour relations officer, the Board may inquire into the grievance. 1993, c. 38, s. 63 (5). Determination and order (4) If the Board, after inquiring into the grievance, is satisfied that the employee did not contravene section 28.1, subsection 28.3 (2) or 28.4 (1), that the employee should not be disciplined or that a lesser penalty would be more appropriate, or if the Board is satisfied that the employee suffered adverse consequences as described in clause 28.9 (1) (b), the Board shall make an order to that effect in favour of the employee and shall specify the remedy to be provided. 1993, c. 38, s. 63 (5). Failure to comply with order (5) If the employer fails to comply with a term of the order within fourteen days after the date the Board releases it or after the date specified in the order for compliance, whichever is later, the employee may file the order, without reasons, in the form prescribed under the Labour Relations Act with the Superior Court of Justice, and the order may be enforced as if it were an order of the court. 1993, c. 38, s. 63 (5); 2006, c. 19, Sched. C, s. 1 (1). Settlement (6) If there is a written and signed settlement of a grievance, a party to the settlement may file a written complaint with the Board alleging that another party to the settlement has failed to comply with it, and in that case subsections (3) to (6) apply, with necessary modifications. 1993, c. 38, s. 63 (5). Powers of Board (7) The provisions of the Labour Relations Act and the regulations under it relating to the Board’s powers, practices and procedures apply, with necessary modifications, to an inquiry under this section. 1993, c. 38, s. 63 (5). Same (8) Sections 108, 110, 111 and 112 of the Labour Relations Act apply, with necessary modifications, to an inquiry under this section. 1993, c. 38, s. 63 (5). Definition (9) In this section, “Board” means the Ontario Labour Relations Board. 1993, c. 38, s. 63 (5). PART IV   WHISTLEBLOWERS’ PROTECTION Introduction Purposes 28.11The purposes of this Part are to protect employees of the Ontario Government from retaliation for disclosing allegations of serious government wrongdoing and to provide a means for making those allegations public. 1993, c. 38, s. 63 (6). Definitions 28.12In this Part, “Board” means the Ontario Labour Relations Board; (“Commission”) “Commissioner” means the Information and Privacy Commissioner appointed under the Freedom of Information and Protection of Privacy Act; (“commissaire”) “Counsel” means the Counsel referred to in section 28.14; (“avocat-conseil”) “employee” means an employee of an institution and includes an official of an institution; (“employé”) “head”, in respect of an institution, means a head within the meaning of the Freedom of Information and Protection of Privacy Act; (“personne responsable”) “institution” means an institution within the meaning of the Freedom of Information and Protection of Privacy Act; (“institution”) “law enforcement” means law enforcement within the meaning of the Freedom of Information and Protection of Privacy Act; (“exécution de la loi”) “public file” means the public file maintained by the Counsel under section 28.37; (“dossier public”) “record” means a record within the meaning of the Freedom of Information and Protection of Privacy Act. (“document”) 1993, c. 38, s. 63 (6). Serious government wrongdoing 28.13For the purposes of this Part, an act or omission constitutes serious government wrongdoing if it is an act or omission of an institution or of an employee acting in the course of his or her employment and if, (a) it contravenes a statute or regulation; (b) it represents gross mismanagement; (c) it causes a gross waste of money; (d) it represents an abuse of authority; or (e) it poses a grave health or safety hazard to any person or a grave environmental hazard. 1993, c. 38, s. 63 (6). Counsel 28.14(1)There shall be a Counsel to advise employees concerning allegations of serious government wrongdoing and to provide a means for making those allegations public. Same (2)The Counsel shall be an officer of the Assembly. 1993, c. 38, s. 63 (6). Advice by Counsel 28.15The Counsel shall advise employees concerning, (a) what constitutes serious government wrongdoing that ought in the public interest to be disclosed; (b) whether particular information may reveal serious government wrongdoing that ought in the public interest to be disclosed; (c) the process by which information is made public or disclosed to particular agencies under this Part; (d) the Counsel’s powers and duties under this Part; (e) the employee’s rights and obligations in seeking to make allegations of serious government wrongdoing public through the Counsel or in seeking to disclose those allegations to any other person; and (f) the employee’s rights and obligations under this Part. 1993, c. 38, s. 63 (6). Information Disclosed to Counsel Disclosure of information 28.16(1)An employee may disclose to the Counsel information from an institution that the employee is required to keep confidential, (a) in order to seek advice concerning his or her rights and obligations under this Part; or (b) if he or she believes that the information may reveal serious government wrongdoing that ought to be disclosed in the public interest, in order to make the information public. Employee who is lawyer (2)Despite subsection (1), no lawyer employed by an institution shall disclose to the Counsel any privileged information that he or she has received in confidence from an employee in his or her professional capacity. Form of information (3)An employee may disclose information to the Counsel regardless of whether the information is in oral or written form. Same (4)If an employee, acting in good faith, believes on reasonable grounds that a record may reveal serious government wrongdoing, the employee may copy the record for the purpose of disclosing it to the Counsel and may disclose that copy to the Counsel. Same (5)Subsection (4) does not authorize an employee to remove an original record from an institution for the purpose of disclosing it to the Counsel. Employee not liable (6)No employee is liable to prosecution for an offence under any Act, (a) for copying a record or disclosing it to the Counsel in accordance with this section; or (b) for disclosing information to the Counsel in accordance with this section. Same (7)No proceedings lie against an employee for copying a record or disclosing a record or information to the Counsel in accordance with this section, unless it is shown that he or she acted in bad faith. 1993, c. 38, s. 63 (6). Confidentiality 28.17(1)Subject to subsection 28.24 (5), neither the Counsel nor any employee of the Counsel shall disclose information received from an employee under this Part to any person without the consent of the employee who disclosed the information. Same (2)If an employee seeks advice from or discloses information to the Counsel, neither the Counsel nor any employee of the Counsel shall disclose the identity of the employee to any person without the employee’s consent. Exception, prevent crime (3)Despite subsections (1) and (2), the Counsel may disclose information received from an employee and the employee’s identity to the Ontario Provincial Police or a municipal police force if the Counsel believes on reasonable grounds, (a) that a crime is likely to be committed if he or she does not do so; and (b) that the disclosure is necessary to prevent the crime. Same (4)Subsection (3) does not authorize the Counsel to disclose to the Ontario Provincial Police or a municipal police force a copy of a record that an employee has disclosed to the Counsel under subsection 28.16 (4). Exception, grave danger (5)Despite subsection (1), if the Counsel believes on reasonable grounds that it is in the public interest that information disclosed by an employee be disclosed to the public or persons affected and that it reveals an imminent grave health or safety hazard to any person or an imminent grave environmental hazard, the Counsel shall, as soon as practicable, disclose that information to the head of the institution to which it relates. 1993, c. 38, s. 63 (6). Disclosure of Serious Government Wrongdoing Review by Counsel 28.18(1)On request by an employee, the Counsel shall review information the employee has disclosed to the Counsel to determine whether, in the Counsel’s opinion, the information, if correct, may reveal serious government wrongdoing. Require report (2)Subject to subsection (3), the Counsel shall determine that he or she should require a report under this Part if, (a) he or she determines that the information, if correct, may reveal serious government wrongdoing; (b) the information is sufficiently credible that the Counsel believes there may be serious government wrongdoing; and (c) the information that may be included in the notice given under section 28.20 is sufficient to enable the head to conduct an investigation into the matter. Exception (3)The Counsel may refuse to require a report under this Part if, in the Counsel’s opinion, (a) it would be more appropriate for the employee to bring the allegation of wrongdoing to the attention of a responsible official in the institution to which the information relates; or (b) it would be more appropriate for the employee to bring the allegation of wrongdoing to the attention of a law enforcement agency or a government agency whose mandate is to investigate similar allegations. Same (4)The Counsel shall not determine that it would be more appropriate for the employee to bring an allegation of wrongdoing to the attention of a responsible official if the employee fears retaliation if the employee were to do so. Inform employee (5)The Counsel shall inform the employee of his or her determinations under this section and of the reasons for them. 1993, c. 38, s. 63 (6). No serious wrongdoing 28.19If the Counsel determines that he or she should not require a report, the Counsel may, with the consent of the employee, disclose part or all of the information received from the employee to the head of the institution to which the information relates. 1993, c. 38, s. 63 (6). Report required 28.20(1)Subject to subsection (2), the Counsel shall by notice require the head of the institution to which information disclosed by an employee relates to submit to the Counsel a report concerning the information if, (a) the Counsel determines that he or she should require a report; and (b) the employee consents to the Counsel’s requiring the report. Same (2)If, because of the nature of the information, the Counsel believes that it would not be appropriate to require the head of the institution to which the information relates to submit a report concerning it, the Counsel may by notice require the report from whatever Minister of the Crown he or she considers appropriate in the circumstances rather than from the head referred to in subsection (1). Contents of notice (3)Subject to subsection (4), the notice requiring a report shall include a written summary of the information disclosed to the Counsel that relates to the allegation of wrongdoing and copies of any records which the employee seeks to have made public through the Counsel. Delete to protect privacy (4)The Counsel shall, with the consent of the employee, delete from the summary or records information that might, directly or indirectly, disclose the identity of the employee. 1993, c. 38, s. 63 (6). Investigation and report 28.21(1)Subject to section 28.25, a head of an institution who receives a notice requiring a report shall cause an investigation to be conducted concerning the information set out in the notice and report to the Counsel in writing within thirty days after receiving the notice. Extension of time (2)On request from the head, the Counsel may extend the time required for preparing the report. Curtailing time (3)The Counsel may require the report within a period less than thirty days after receiving the notice in exigent circumstances. Personal information (4)The head may collect personal information from a person or institution other than the person to whom the information relates and may disclose personal information to a person or institution if that collection or disclosure is necessary for the conduct of an investigation under this section. Contents of report (5)The head’s report shall set out, (a) the written summary and records provided by the Counsel under subsection 28.20 (3); (b) the steps taken in the investigation; (c) a summary of the evidence obtained from the investigation; (d) any serious government wrongdoing that was discovered in the course of the investigation; and (e) any corrective action that has been taken or that will be taken as a result of the investigation. Exempt information (6)The head may sever information from the report if the head determines, (a) that the information to be severed is exempt from access under any of sections 12 to 22 of the Freedom of Information and Protection of Privacy Act and that there is not a compelling public interest in disclosing the information that clearly outweighs the purpose of the exemption; or (b) that the information to be severed is exempt from access under another section of that Act. Same (7)The head may sever information from the written summary and records provided by the Counsel under subsection 28.20 (3) if the head determines that the information to be severed does not relate to the allegation of serious government wrongdoing. Set out severance (8)If the head severs information under subsection (6) or (7), the report shall set out, (a) the specific provision of this Part under which the information is severed; and (b) the fact that, if the report has been placed in the public file, any person may appeal to the Commissioner for a review of the decision. Same (9)If the head severs information under subsection (6), the report shall set out, (a) the specific provision of the Freedom of Information and Protection of Privacy Act under which the information is exempt from access; and (b) the reason the provision applies to the severed information. Submissions (10)When the head reports to the Counsel, the head may make submissions to the Counsel concerning whether it is in the public interest to have the report placed in the public file. 1993, c. 38, s. 63 (6). If report inadequate 28.22(1)After receiving a report from a head, the Counsel may give a written direction to the head to revise the report if the report is not made in accordance with section 28.21 or if the report, directly or indirectly, identifies the employee whose information initiated the investigation as the source of the information. Revised report (2)A head who receives a direction to revise a report shall provide the Counsel with the revised report, as directed, within the time required by the Counsel in the direction. 1993, c. 38, s. 63 (6). If report not received 28.23(1)If the Counsel does not receive a head’s report or revised report within the time required under this Part, the Counsel may report that fact to the Speaker who shall cause the Counsel’s report to be laid before the Assembly if it is in session or, if not, at the next session. Same (2)The Counsel’s report under subsection (1) shall not include any information concerning the substance of any allegation of serious government wrongdoing. 1993, c. 38, s. 63 (6). Report in public file 28.24(1)After receiving a report made in accordance with section 28.21, the Counsel shall make the report public by placing it in the public file unless the Counsel determines that it is not in the public interest to make it public. Public interest (2)To determine whether it is in the public interest to make the report public, the Counsel shall consider all of the relevant circumstances including, (a) if the report does not disclose serious government wrongdoing, whether publication of the report would unfairly damage the reputation of a person or an institution; (b) whether the disclosure could reasonably be expected to endanger the life or physical safety of any person; (c) whether the disclosure could reasonably be expected to prejudice or interfere with a law enforcement investigation; and (d) whether the report might identify who the employee was whose information initiated the investigation. Head’s submissions (3)The Counsel shall not place a head’s submissions under subsection 28.21 (10) in the public file. Submissions by employee (4)If the Counsel believes it is in the public interest to place the report in the public file, before deciding whether to place the report in the public file, the Counsel shall show the report to the employee whose information initiated the investigation and give the employee an opportunity to make submissions on whether it is in the public interest to place the report in the public file. Consent not needed (5)The Counsel may place the report in the public file without the consent of the employee whose information initiated the investigation. 1993, c. 38, s. 63 (6). Referral for investigation 28.25(1)If, because of the nature of an allegation of wrongdoing, the head believes that rather than preparing a report it would be more appropriate to refer the matter to a law enforcement agency or a government agency whose mandate is to investigate similar allegations, he or she may refer it to the agency for investigation. Same (2)If the head refers an allegation of wrongdoing to an agency and the agency agrees to investigate the allegation, the head shall give written notice to the Counsel that the agency will investigate the allegation, but the head shall do so within thirty days after receiving the notice from the Counsel. Same (3)The head shall not include any information concerning the substance of the allegation of wrongdoing in a notice under subsection (2). Same (4)If the head gives the Counsel notice under this section, the head is not required to prepare a report under section 28.21. Notice of referral in public file (5)After receiving a notice under this section, the Counsel shall make the notice public by placing it in the public file unless the Counsel believes that doing so could reasonably be expected to prejudice or interfere with a police investigation. 1993, c. 38, s. 63 (6). Appeal Seeking Disclosure of Severed Information Appeal re severed information 28.26(1)After a report of a head has been placed in the public file, if the head responsible for that report has severed information required to be in the report, any person may appeal to the Commissioner to seek disclosure of the severed information. Procedure (2)Part IV of the Freedom of Information and Protection of Privacy Act applies, with necessary modifications, to an appeal under this section. Same (3)The appeal shall be made within twelve months after the report is placed in the public file. Commissioner’s power (4)The Commissioner shall determine all questions of fact and law in the appeal. Copy of decision to Counsel (5)The Commissioner shall give a copy of his or her decision to the Counsel who shall place it in the public file with the report to which it relates. 1993, c. 38, s. 63 (6). Counsel to appeal for employee 28.27(1)The Counsel shall bring an appeal under section 28.26 if the employee who disclosed the information that led to the report requests that the Counsel do so. Same (2)The Counsel shall not disclose the identity of the employee in the appeal. Same (3)If the Counsel brings an appeal on an employee’s request, the Counsel shall keep the employee informed of the progress and result of the appeal. 1993, c. 38, s. 63 (6). Head to forward other information 28.28(1)A head who has received notice of the final disposition of an appeal under section 28.26 shall forward to the Counsel a copy of the written summary and reports referred to in subsection 28.21 (5), revised in accordance with the final disposition of the appeal. Information in public file (2)The Counsel shall place the records received under this section in the public file with the report to which they relate. 1993, c. 38, s. 63 (6). Protection of Employees No discipline, etc. 28.29(1)No institution or person acting on behalf of an institution shall take adverse employment action against an employee because, (a) the employee, acting in good faith, has disclosed information to the Counsel under this Part; or (b) the employee, acting in good faith, has exercised or may exercise a right under this Part. Presumption (2)There is a presumption that an institution has contravened subsection (1) if, (a) the Counsel has required a head to submit a report to the Counsel concerning an employee’s allegation of serious government wrongdoing; and (b) after the Counsel has done so, that head or any other head has taken adverse employment action against the employee. Offence (3)Every person who contravenes subsection (1) is guilty of an offence and on conviction is liable to a fine of not more than $5,000. Consent (4)A prosecution under this section shall not be commenced without the consent of the Board. Information (5)An application for consent to commence a prosecution for an offence under this section may be made by a trade union or an employee’s organization among others, and, if the consent is given by the Board, the information may be laid by an officer, official or member of the body that applied for consent. Civil remedy (6)An employee who wishes to complain that an institution or a person acting on behalf of an institution has contravened subsection (1) may either have the matter dealt with by final and binding settlement by arbitration under a collective agreement, if that is available, or file a complaint with the Board under section 28.30. Same (7)Subsection (6) shall not be interpreted to limit any other right an employee may have under any other Act or at law to seek a remedy with respect to adverse employment action. 1993, c. 38, s. 63 (6). Complaint to Board 28.30(1)An employee may file a written complaint with the Board alleging that an institution has contravened subsection 28.29 (1). Inquiry (2)The Board may authorize a labour relations officer to inquire into a complaint and, if it does so, the officer shall, (a) inquire into the complaint forthwith; (b) endeavour to effect a settlement of the matter complained of; and (c) report the results of the inquiry and endeavours to the Board. Inquiry by Board (3)If a labour relations officer is unable to effect a settlement of the matter complained of, or if the Board in its discretion dispenses with an inquiry by a labour relations officer, the Board may inquire into the complaint. Determination (4)If the Board, after inquiring into the complaint, is satisfied that an institution has contravened subsection 28.29 (1), the Board shall determine what, if anything, the institution shall do or refrain from doing about the contravention. Same (5)The determination may include, but is not limited to, one or more of, (a) an order directing the institution or person acting on behalf of the institution to cease doing the act or acts complained of; (b) an order directing the institution or person to rectify the act or acts complained of; or (c) an order directing the institution or person to reinstate in employment or hire the employee, with or without compensation, or to compensate, instead of hiring or reinstatement, for loss of earnings or other employment benefits in an amount assessed by the Board against the institution or person. Agreement to contrary (6)A determination under this section applies despite an agreement to the contrary. 1993, c. 38, s. 63 (6). Failure to comply 28.31If the institution fails to comply with a term of the determination within fourteen days after the date of its release by the Board or after the date provided in the determination for compliance, whichever is later, the employee may file the determination, without reasons, in the form prescribed under the Labour Relations Act with the Superior Court of Justice and the determination may be enforced as if it were an order of the court. 1993, c. 38, s. 63 (6); 2006, c. 19, Sched. C, s. 1 (1). Effect of settlement 28.32(1)If there is a written and signed settlement of a complaint, a party to the settlement may file a written complaint with the Board alleging that another party to the settlement has failed to comply with the settlement. Same (2)Subsection (1) and sections 28.30 and 28.31 apply, with necessary modifications, with respect to a complaint alleging failure to comply with a settlement. 1993, c. 38, s. 63 (6). Person acting on behalf of institution 28.33For the purposes of sections 28.30 to 28.32, an act that is performed on behalf of an institution shall be deemed to be the act of the institution. 1993, c. 38, s. 63 (6). Powers, etc., of Board 28.34(1)The provisions of the Labour Relations Act and the regulations under it relating to powers, practices and procedures of the Board apply, with necessary modifications, to an inquiry by the Board into a complaint under this Act. Same (2)Sections 108, 110, 111 and 112 of the Labour Relations Act apply, with necessary modifications, to an inquiry by the Board into a complaint under this Act. 1993, c. 38, s. 63 (6). General Counsel Appointment 28.35(1)The Lieutenant Governor in Council shall appoint a member of The Law Society of Upper Canada as the Counsel on the address of the Assembly. Term of office (2)The Counsel shall hold office for a term of five years and may be reappointed for one or more terms. Removal (3)The Lieutenant Governor in Council may remove the Counsel for cause on the address of the Assembly before the expiration of his or her term of office. Salary (4)The Counsel shall be paid the remuneration and allowances fixed by the Lieutenant Governor in Council. Staff (5)The persons that are necessary for the performance of the duties of the Counsel shall be members of the staff of the Office of the Assembly. 1993, c. 38, s. 63 (6). Temporary Counsel 28.36(1)If the Counsel dies, resigns or is unable or neglects to perform the functions of his or her office, the Lieutenant Governor in Council may appoint a temporary Counsel to hold office for a term of not more than six months. Same (2)A temporary Counsel shall have the powers and duties of the Counsel and shall be paid the remuneration and allowances fixed by the Lieutenant Governor in Council. 1993, c. 38, s. 63 (6). Public file 28.37The Counsel shall maintain a file available to the public containing any report submitted to the Counsel by a head and made public by the Counsel under section 28.24. 1993, c. 38, s. 63 (6). Confidentiality of records, Counsel 28.38(1)Unless this Act specifically authorizes their disclosure, records in the custody or under the control of the Counsel shall not be disclosed to any person outside the office of the Counsel, (a) if the records relate to information disclosed to the Counsel by an employee; or (b) if the records are prepared or received in respect of an allegation of serious government wrongdoing. Same, institutions (2)Subject to section 28.25 (referral for investigation), the following records shall not be disclosed to any person if the records are in the custody or under the control of an institution and they relate to a report a head has prepared or is preparing for the Counsel: 1. The written summary and records provided by the Counsel under subsection 28.20 (3). 2. Any records prepared by the institution in order to conduct its investigation and make a report. 3. Any copies made of existing records used by the institution in order to conduct its investigation and make a report. 4. The report or a draft of the report. Exception (3)Subsection (2) does not apply if the head’s report has been submitted to the Counsel and the Counsel places the report in the public file. 1993, c. 38, s. 63 (6). Proceedings privileged 28.39(1)Except in the case of judicial review, no proceedings lie against the Counsel or any person employed in the office of the Counsel for anything he or she may do or report or say in the course of the exercise or intended exercise of his or her functions under this Part, unless it is shown that he or she acted in bad faith. Same (2)The Counsel and any person employed in the office of the Counsel shall not be called to give evidence or required to produce a record in any court or in any proceeding of a judicial nature in respect of anything coming to his or her knowledge in the exercise of his or her functions under this Part, unless disclosure of that information or record is authorized by this Part. 1993, c. 38, s. 63 (6). Counsel not liable 28.40The Counsel is not liable to prosecution for an offence under any Act for anything he or she may do or report or say in the course of the exercise or intended exercise of his or her functions under this Part, unless it is shown that he or she acted in bad faith. 1993, c. 38, s. 63 (6). Annual report 28.41(1)The Counsel shall make an annual report on the activities of the Counsel’s office to the Speaker of the Assembly. Same (2)The Counsel’s annual report shall include a summary of the number, nature and ultimate resolutions of allegations of serious government wrongdoing disclosed to the Counsel under this Act. Same (3)The Speaker shall cause the report to be laid before the Assembly if it is in session or, if not, at the next session. 1993, c. 38, s. 63 (6). Rights preserved 28.42Nothing in this Part shall be interpreted to limit any right that an employee may have under any other Act or at law to disclose information about government wrongdoing in the public interest. 1993, c. 38, s. 63 (6). Commencement 28.43Sections 28.11 to 28.42 come into force on a day to be named by proclamation of the Lieutenant Governor. 1993, c. 38, s. 63 (6). PART V   REGULATIONS AND MISCELLANEOUS