Special Classes of Government Employment

• Author: Timothy Hadwen - David Strang - Leonard Marvy - Don Eady
• Profession: Director, Legal Services Branch, Ontario Ministry of Labour - Associate Director, Management Board Secretariat - Solicitor, Ontario Labour Relations Board - Partner, Paliare Roland Rosenberg Rothstein LLP
• Pages: 239-325

 

Special Classes of Government

Employment

A. INTRODUCTION

e oce of public servant, with its particular duties, responsibilities and em-

ployment regime, is central to the functioning of Ontario’s government; but,

there are other vita l and distinct classes of government employment.

Certain public servants hold dual oces, including employment standards

ocers under the Employment Standard s Act (ESA), and occupational health and

safety inspectors under Occupational Health and Safety Act, as well as medical

and legal professionals. e performance of the duties of these public servants

involves the exercise of an additional degree of independent decision-making

that has some employment consequences. Public servants who are OPP ocers

are subject to a second employment regime intended to suppor t the independent

performa nce of policing duties .

Not all persons “employed” directly by government are employed as public

servants. ere seem to be two primary justications for these variations in the

state “employment” relationship. e rst is to give the individuals in question

more independence from government. e leading examples are members of

provincial parl iament, Legislative Assembly ocers and employees, a nd judicial

ocers. Indeed, in the case of members of Parliament and judicial ocers, the

need for independence is so strongly recognized that it may very well be inap-

propriate to refer to them as “employees.”

e second, and opposite, purpose for using a form of employment other

than that of public servant is to make the individual in question more directly

politically-accountable to the executive. e leading example is the non-judi-

cial Order-in-Council (OIC) appointments. ose appointments are made, and

brought to an end, directly by the executive branch, without the necessity of

complying with the Public Service Act (PSA). When OIC appointments are used



       

for adjudicative positions, there is a risk of creating an inappropriate degree of

political accountability.

B.LIEUTENANT GOVERNOR

e Lieutenant Governor is the personal representat ive of the Crown and is formally

the chief executive ocer of t he province. e federal const itution establishes the

position of provincial lieutenant governor, and it is the federal cabi net that makes

the appointment on the recommendation of the provincial government.

Once appointed, the Lieutenant Governor is not an agent of the federal gov-

ernment, but is obliged by the relevant constitutional conventions to act on the

advice of the provincial cabinet. Where an Act refers to the Lieutenant Governor

in Council, it is referring to t he Lieutenant Governor acting on the advice of Cabi-

net. e Lieutenant Governor, in Council, endorses c abinet decisions, which gives

them the force of law and brings an end to the govern mental approval process.

e Lieutenant Governor is appointed at pleasure. Du ring the rst ve years

of their tenure, the Lieutenant Governor ca n only be removed for cause by the Par-

liament of Canada. e appointment can be for longer than ve years, but it has

been agreed that a longer appointment, with the resultant loss of the “for cause”

protection, results in a loss of security of tenure that is incompatible with the de-

sired independence of the oce. Ontario pract ice has been ve-year terms.

e Lieutenant Governor’s salary is paid by the federal Parliament and set

by the federal Salaries Act, which prov ides for statutory i ncreases in accorda nce

with a cost index. All other costs of t he oce are paid provincially.

C.MEMBERS OF PROVINCIAL PARLIAMENT

Mem ber s o f Pr ovi nc ia l Pa rl iam ent (MP Ps) a re gove rn ed b y th e Legislative Assembly

Act. Certain re quirements concerning conict of interest are set out in t he Mem-

bers’ Integrity Act, .Pensions are governed by the MPPs Pension Act, .

 Constitution Act,, s. .

 Ibid., s.  and Executive Council Ac t, R.S.O. , c. E..

 Lieutenant Gover nor’s website: <www.lt.gov.on.ca>.

 Cons titution Act, , s. .

 W. Laurier, Canada, House of C ommons, Debates, Januar y , , Vol. XXXVI at ,

as discuss ed in J.T. Saywell, e Oce of the Lieutenant- Governor: A Study in Cana dian

Government and Politics, (Toronto: University of Toronto Press, ) at .

 Constitution Act, , s. .

 Salaries Act, R.S.C. c. S-, s. .

 R.S.O. c. L..

 S .O. , c. .

 MPPs Pension Act, , S.O. , c. , S ched. A.

Chapter : Special Cl asses of Government Employment

)Eligibility to Serve as an MPP

In order to be an MPP, one must be at least eighteen years of age and a Ca nadian

citizen residi ng in Ontario. Persons who are members of the Senate or the House

of Commons at the time of being nominated to run for election are ineligible.

Once elected, MPPs may not hold oce a s municipal councillors or as memb ers

of local municipal boards. Persons who hold an “oce, commission or employ-

ment” in the service of either the federal or provincial government for which

they receive some form of remuneration are ineligible, with some exceptions,

including parliamentary assistants, coroners, and members of boards, commit-

tees or commissions, although Order-in-Council appointees to certain boards,

including the Ontario Labour Relations Board and the Civil Service Commis-

sion, remain ineligible to be members of t he Assembly.

Where a person who is ineligible is never theless elected, the election is void.

A sitting MPP who becomes di squalied may continue to sit until t hat disquali-

cation is conrmed by an “election court.” An ineligible or disqualied member

who proceeds to sit may be subject to a penalty of . per day, claimable by

any person who sues for it. A member elect may, at any time before their elect ion

is complained of, “discla im” their right to a seat in the Legi slature or resign.

Where an election is contested, the Ontario Court (General Division) has

jurisdiction to decla re which candidate is entitled to sit in the Le gislature.

)Rights, Privileges, and Restrictions Imposed by the

Legislative Assembly

e Assembly has the right to i nquire into and punish, as breaches of privi lege or

as contempts, twelve enumerated matters aect ing an MPP or the Assembly as a

whole, including:

•a ssault, insult or libel of a member;

•obst ructing, threateni ng or attempting to force or intimidate a member;

•oer ing a bribe to a member in respect of a legislative matter;

•taking any civil proceeding against, or eecting the arrest or imprison-

ment of, a member because of a legislative matter;

•e ecting the arrest or detention of a member for any civ il matter during a

session of the Legislat ure or during the twenty days preceding or twent y

days following a session; a nd

 Legislative As sembly Act, R.S.O. , c. L., s. .

 Ibid., s. ().

 Ibid., s. .

 Ibid., s. .