Special Classes of Government Employment

AuthorTimothy Hadwen - David Strang - Leonard Marvy - Don Eady
ProfessionDirector, Legal Services Branch, Ontario Ministry of Labour - Associate Director, Management Board Secretariat - Solicitor, Ontario Labour Relations Board - Partner, Paliare Roland Rosenberg Rothstein LLP
 
Special Classes of Government
e oce of public servant, w ith its partic ular duties, responsibi lities and em-
ployment regime, is centra l to the funct ioning of Ontario’s government; but,
there are other vita l and distinct classes of government employment.
Certai n public serva nts hold dual oces, i ncluding employment sta ndards
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 p erformance of the duties of t hese public servants
involves the exercise of an additional degree of independent decision-mak ing
that has some employment consequences. Publ ic 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” di rectly by government are employed as public
servants. ere se em to be two primar y justications for these v ariations in the
state “employment” relationship. e rst is to give the i ndividuals in que stion
more independence from government. e leading ex amples are members of
provincial parl iament, Legislative Assembly ocers and employees, a nd judicial
ocers. Indeed, in t he case of members of Parliament a nd 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 usi ng a form of employment other
than that of public servant is to make the individual in question more directly
politically-accou ntable to the executive. e leadi ng example is the non-judi-
cial Order-in-Council (OIC) appointments. ose appointments are made, and
brought to an end, direct ly by the executive branch, wit hout 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.
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 releva nt constitutional conventions to act on the
advice of the provincial c abinet. Where an Act refers to the Lieutena nt 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 appoi ntment can be for longer than ve years, but it has
been agreed t hat a longer appointment, w ith the result ant loss of the “for c ause”
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 t he 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.
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 r un for election are inelig ible.
Once elected, MPPs may not hold oce a s municipal councillors or as memb ers
of local municipa l boards. Persons who hold a n “oce, commission or employ-
ment” in the serv ice of either the federal or provincial govern ment for which
they receive some form of remuneration are i neligible, with some exce ptions,
including parlia mentary assist ants, coroners, and members of boa rds, commit-
tees or commissions, although Order-in-Council appointees to certain boards,
including the Ontar io Labour Relations Board and the Civ il Servic e 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, t he Ontario Court (General Div ision) 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;
t aking any civ il proceeding a gainst, or eect ing the arrest or i mprison-
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. .

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