Special Classes of Government Public Servants
| Author | Timothy Hadwen/David Strang |
| Pages | 159-201 |
159
Special Classes of Government
Public Servants
A. INTRODUCTION
In recognition of a real or perceived uniqueness, some public servants
appointed under the Public Service of Ontario Act, 2006 (PSOA)1 Part
III are subject to additional employment frameworks.
Employees who perform inspection roles that require additional
independence have been made employee oce holders. Ontario Public
Service (OPS) doctors, dentists, and lawyers, who have been excluded
from labour relations statutes, including the Crown Employees Col-
lective Bargaining Act, 1993 (CECBA),2 are subject to non-statutory
negotiated labour relations framework agreements.
The Ontario Provincial Police (OPP) are subject to the PSOA, and
to the Police Services Act,3 which covers all the province’s police o-
cers and provides the employment mechanism through which policing
standards are upheld. Rather than the CECBA, the OPP are covered
by a special labour relations statute, the Ontario Provincial Police Col-
lective Bargaining Act, 2006 (OPPCBA),4 designed in part to provide
an interest arbitration regime.
Finally, this chapter deals with an anomalous group, teachers in
ministry-run schools for students with special needs. By operation of
1 SO 2006, c 35, Sch A [PSOA].
2 SO 1993, c 38 [CECBA].
3 RSO 1990, c P.15.
4 SO 2006, c 35, Sch B [OPPCBA].
160 | ONTARIO PUBLIC SERVICE EMPLOYMENT AND LABOUR LAW
the Provincial Schools Authority Act,5 these teachers are not PSOA Part
III employees. Instead, their terms and conditions of employment are
set through provincial teacher collective bargaining.
B. EMPLOYEE OFFICE HOLDERS
Certain public servants hold additional statutory oces. Examples
include employment standards ocers under the Employment Stan-
dards Act, 2000 (ESA)6 and occupational health and safety inspectors
under the Occupational Health and Safety Act (OHSA).7 The perform-
ance of those particular oces involves independent decision making,
and that requirement is enforceable by the aected interest.
The degree of independence mandated by a statute needs to be
determined on a case-by-case basis. The Supreme Court has stated that,
absent the application of the Canadian Charter of Rights and Freedoms
(the Charter),8 the legislature is empowered to determine the degree
of regulatory independence enjoyed by adjudicators and, by implica-
tion, other oce holders.9 However, aected individuals will have an
enforceable right to have decisions about them made as independently
as contemplated by the statute in question. In a case concerning employ-
ment standards ocers under a former version of the ESA, prior to
an amendment giving binding policy authority to their director,10 the
Ontario Court of Appeal stated that
[e]mployment standards ocers . . . have broad powers under the Act
and are charged with the obligation of determining the legal rights and
liabilities of employees and employers. Employment standard ocers
must make findings of fact and apply the law as they understand
those findings of fact. They are given broad investigative powers to
assist in performing these important tasks. When adjudicating claims
5 RSO 1990, c P.35 [PSAA].
6 SO 2000, c 41, s 86 [ESA].
7 RSO 1990, c O.1, s 6 [OHSA].
8 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982
(UK), 1982, c 11 [Charter].
9 Ocean Port Hotel Ltd v British Columbia (General Manager, Liquor Control
and Licensing Branch), 2001 SCC 52; Bell Canada v Canadian Telephone
Employees Association, 2003 SCC 36.
10 For the director’s authority to issue binding policies, see ESA, above note 6,
ss 88(2) and 89(2).
Special Classes of Government Public Servants | 161
as between employers and employees, employment standards ocers
are obliged to act independently of the Ministry and the parties. They
must arrive at their own factual findings, make their own legal inter-
pretations, and arrive at their own conclusions.11
The Court of Appeal determined that the employment standards ocer
had not been able to act in the independent fashion required under
the statute, but instead had been inappropriately dictated to by their
superiors in the ministry. As a result, the regulatory decision was set
aside. This enforceable right to the statutorily mandated degree of
independence does not seem specific to employment standards ocers,
but rather would seem to apply, depending on the statute, to all regu-
latory oce holders.
The further issue is how the requirement of independence aects
the administration of the employment relationship between the oce
holder and management. A logical implication is the placing of some
limit on the degree to which an employee can be disciplined for acting
contrary to instructions from management. The appropriate balance
does not appear to have been litigated in Ontario and, indeed, not much
litigated in Canada. In Burchill v Yukon (Commissioner),12 the reasons
for dismissal of a public servant related to the signing authority for the
several regulatory oces held by the employee. It was alleged that they
failed to deal properly with the delegation of that signing authority
during their absence. The court ruled as follows:
The plainti seems to believe that he had an unfettered discretion with
respect to the delegation of signing authority. That is clearly not the
case. It was not open to him to decide unilaterally to add to the work-
load of junior sta within the unit. It was not open to him to insist that
someone outside of his oce be appointed to the unit in order to take
on additional duties. Such a scenario is inconsistent with the realities
of a government bureaucracy governed by a collective agreement. The
plainti could have brought his proposals to his superior; instead, he
presented them as fait accompli.13
11 Libbey Canada Inc v Ontario (Ministry of Labour) (1999), 42 OR (3d) 417 (CA)
at para 68 [Libbey], citing Downing v Graydon (1978), 21 OR (2d) 292 at 305–7.
12 [2000] YJ No 117 (YTSC), appeal to Court of Appeal dismissed on other
grounds, [2002] YJ No 19 (CA), application for leave to appeal to the Supreme
Court of Canada dismissed, [2002] SCCA No 233.
13 Ibid (YTSC) at para 46.
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