PSOA Ethical Framework
| Author | Timothy Hadwen/David Strang |
| Pages | 97-158 |
97
PSOA Ethical Framework
A. INTRODUCTION
is to ensure that the public service is “non-partisan, professional, ethical
and competent,” in accordance with constitutional convention, given
the need to relax the strict prohibitions of the past.2
By defining public servant to include public servants appointed by
the Public Service Commission (PSC) under PSOA Part III (employees
in ministries) and also appointees and employees in “public bodies,”
the requirement to take the oaths and the obligations imposed by the
ethical framework is extended to agencies prescribed as public bodies.3
Public servants are entrusted with public authority solely for the
purpose of implementing the policies of the elected executive subject to
the laws passed by the legislature and the provisions and democratic
conventions of the Constitution.4 Every elected executive is owed equal
diligence regardless of the public servant’s personal view of the wis-
dom of a particular instruction or policy. However, in the event an
1 SO 2006, c 35, Sch A [PSOA].
2 Ibid, s 1, as further discussed in Chapter 1.
3 O Reg 147/10, as amended, which includes agencies typically seen as agencies of
the provincial government.
4 Lorne Sossin, “Defining Boundaries: The Constitutional Argument for Bureau-
cratic Independence and Its Implication for the Accountability of the Public
Service” in Research Studies, Vol 2 (Ottawa: Commission of Inquiry into the
Sponsorship Program and Advertising Activities (Gomery Inquiry), 2006) at 37.
98 | ONTARIO PUBLIC SERVICE EMPLOYMENT AND LABOUR LAW
instruction is contrary to law, or the requirements of the democratic
conventions of the Constitution, the public servant may have a legal
right and certainly has an ethical obligation to object.5
Historically, public servants’ ethical obligations were grounded in
the tradition of non-participation in partisan politics, faithful service
to the elected executive, and complete discretion and anonymity. These
values were reflected in the oaths of allegiance and oce and supple-
mented by regulations governing conflict of interest.
The expansion in the size, complexity, and role of government made
adherence by every public servant to the strict tradition of complete
non-participation in politics or making any public comment increas-
ingly untenable. The prohibitions on political activity did not survive
Charter6 challenge, resulting in amendments to the former Public Ser-
vice Act (PSA)7 to permit a degree of political activity while ensuring
the public service remained, and appeared to remain, a non-partisan
organization.
The PSOA includes Parts IV (Conflict of Interest), V (Political Activ-
ity), and Part VI (Disclosure of Wrongdoing).8 These are commonly
referred to as the ethical framework, though only Part IV is actually
titled “Ethical Conduct,” and all three impose strict legal, not merely
ethical, obligations. This chapter begins with the oaths since they and
constitutional convention still form the basis for public servants’ ethical
obligations.
The PSOA did not make significant changes to the rules regarding
conflict of interest and political activity. It did formalize and improve
the process for dealing with these matters. Deputy ministers and the
executive head of each agency are made “ethics executives” for their
ministry or agency. Employees that suspect that they may fall afoul of
a conflict or political activity rule must ask for and be given an authori-
tative ruling including measures that will address the concern, allowing
violations to be avoided. The integrity commissioner is the ethics execu-
tive for employees in ministers’ oces and may be referred cases where
other ethics executives think it advisable.
6 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982,
being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
7 SO 1993, c 38, replaced by the PSOA.
8 For discussion of the structure and application of the PSOA, see Chapter 2.
PSOA Ethical Framework | 99
The disclosure of wrongdoing provisions was first introduced in the
PSOA. While public servants were always free — indeed, may have been
under an ethical duty — to disclose serious wrongdoing, there was no
process that assured that the disclosure would be investigated or that
the public servant would not face reprisal.
The Act was strengthened by an amendment transferring the role of
the order-in-council appointed conflict of interest commissioner to the
integrity commissioner, an ocer of the legislature. This consolidated
the roles of the two oces into a single oce headed by a commissioner
with the greater security of tenure and who reports directly to the legis-
lature. The processes for dealing with conflicts, political activity, and
disclosure of wrongdoing are intended to allow matters to be addressed
in a professional non-political manner. The integrity commissioner’s
ability to report directly to the legislature on any failing in these pro-
cesses allowed the legislature a new avenue to discover and address
such a failure.
B. DUTY OF LOYALTY AND DISCRETION
) Oaths
Ontario public servants are required to swear or arm two oaths the
wording of which are prescribed in regulation.9
The first is a traditional oath of allegiance to the monarch.10 Swear-
ing an oath of allegiance to the person who sits on the throne of another
country has the appearance of a troubling anachronism, but the English
sovereign is still the constitutional head of the Canadian government
and will remain so until the Canadian Constitution is amended. The
members of the legislature are required by section 128 of the Consti-
tution Act, 186711 to swear the same oath of allegiance prescribed for
public servants.
The oath of allegiance is not in the context of the Canadian Con-
stitution in its current form an oath of allegiance to a physical person.
By swearing allegianceto the Queen [now King] of Canada, the pub-
lic servant is swearingto a symbol of Ontario’s form of democratic
9 PSOA, above note 1, ss 5–6.
10 O Reg 373/07, s 1.
11 Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 134, reprinted in RSC 1985,
App III, No 5.
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