Special Duties and Obligations of Public Servants and Crown Employees

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 Duties and Obligations of
Public Servants and Crown Employees
is chapter focuses on t he employment obligations of individual public ser vants
and other Crown employees as esta blished by statute and the common law.
By virtue of the Public Service Act (PSA), public servants must take oaths of
oce and secrecy, and of al legiance. As well, t hey are subject to “Rules of Con-
duct for Public Serva nts” that include specic prohibit ions against conic t of
inte rest. B y vir tue of t he com mon law, pu blic se rvan ts are also o bliged to exerc ise
a certain deg ree of restraint concerning public crit icism of their government em-
e political activity restrict ions in the PSA apply, not just to public ser-
vants, but to all Crown employees .
It is far from clear that many of these obligations, as imposed on public ser-
vants, are actu ally unique. Whi le it is the case that cer tain aspec ts of govern-
ment employees’ obligations have be en stated very explicitly, caution s hould be
exercised when considering whether t hose obligations are actua lly so dierent
from the obl igations owed by most employees to thei r employers, or by Crown
employees who are not public servants to t heir Crown employers. ere seem to
be two reasons to avoid generalizations about t he uniqueness of public service or
Crown agency employment.
First, some obligation of “duty a nd loyalty” has tr aditionally been v iewed
as part of every employment relationsh ip. It has been found by courts that there
is a “general duty of good faith owed by an employee to his employer during the
         
currency of his employment.” e same general approach forms part of the a rbi-
tration jurisprudence concer ning unionized employees:
It is an establis hed principle of the common l aw governing an employer/em-
ployee relationship th at “an employee is under a duty to serve h is employer with
good faith and de lity and not deliberately do somet hing which may harm his
employer’s business.” is has been held to be a n implied term of any collect ive
agreement unles s it is explicitly excluded.
So, a general employment duty of loyalt y applies to public servants, other Crow n
employees and other public and private sec tor employees alike.
Secondly, the extent of legal enforceabil ity of the duty of good faith i s to be
determined on the basis of job-spe cic analysis. e Supreme Cour t of Canada
has held, in a series of cas es about employment, that there must be a bala nced
“proportionality ” between management‘s rights a nd recognition of the cr ucial
importance of employment for a person’s “sense of identity, self-worth and emo-
tional well being.” ere is not to be a ny presumptive acceptance of sta ndards
set by management without regard for the actua l requirements of the given em-
ployment relationship. e Supreme Court has stated, concer ning whether an
employee breached the duties owed to an employer in such a fashion a s to war-
rant dismissa l, that:
I favour an ana lytical frame work that examines each ca se on its own particul ar
facts and circ umstances, a nd considers the nature a nd seriousness of the dis hon-
esty in order to as sess whether it is reconcil able with sustain ing the employment
relationship. Such an approac h mitigates the possibil ity that an employee wi ll be
unduly punishe d by the strict application of a n unequivocal ru le that equates all
forms of dishonest beh aviour with just cause for di smissal. At the same ti me, it
would properly emphasiz e that dishonesty going to the c ore of the employment
relationship ca rries the potent ial to warra nt dismissa l for just cause, but al so
Faccenda Chic ken Ltd. v. Fowler, []  All ER  (C.A.), as cited in  Manitoba
Ltd. v. Palmer (),  B.C.L.R. (d)  at  (B.C.C. A.).
Re Regional Municip ality of Hamilton-Wentworth and C.U.P.E., Local  (), 
L.A.C. (d)  (Kennedy) at – , citing R. v. Fuller et al ., Exp. Earles and McKee (),
 D.L.R. (d) , []  O.R.  (C.A.), cited in tu rn in Re Ministry of Attor ney
General, Cor rections Branch and British Co lumbia Government Employee s’ Union (),
 L.A.C. (d)   at . As a more recent example, see Serco Fac ilities Management and
P.S. A.C. (Bag gs) ()  L.A.C. (th)  (Oakley) at .
Reference re Publi c Service Employee Rel ations Act (Alta.), []  S. C.R , per Dick-
son J. at , endorsed in McKinl ey v. BC Tel, []  S. C.R. ,  SCC . See also
Slaight Communications v. Davidson (),  D.L.R. (th)  (S. C.C.) particul arly at
, where Dick son C.J.C. discusses t hat it is consistent with th e values of the Charter of
Rights and Freedom s to address the unequa l nature of the employment relation ship.
Chapter : Special D uties and Obligations of P ublic Servants …
points to the genera l importance of an asses sment of employee obligations that
is based on the act ual requirements of the po sition in question.
ere is no reason to exempt public service employment from this kind of
approach. Indeed, the leadi ng Supreme Court of Canada decision in Fraser ap-
plies exactly this kind of approach to the central, public service issue of public
criticism of the government employer.
Adjudicators have paid close attention to the obl igations that are appropri ate
for the individual job, a nd the result is not necessarily a lesseni ng of obligations.
A leading example i n the common law is the requirement of utmos t loyalty on
the part of par ticularly tr usted employees or “duciaries.” A leading Canad ian
statement of the duciary relationsh ip is that where “one party has an obligation
to act for the benet of another, and that obl igation carries with it a di scretionary
power, the party thus empowered becomes a ducia ry. Equity will then super vise
the relationship by hold ing him to the duciary’s stric t standard of conduct” It
is an extremely uid concept that does not depend on the prior categorizing of
the relationship, but will more li kely be found to exist where the contextual fac-
tors in the relationship, including t he vulnerabil ity of the beneciar y, warrant.
In the employment contex t, an employee’s duciary relationship to an e mployer
determines by the degree of “ loyalty, good faith, and avoidance of a conic t of
duty and self-interest” that is owed. While all employees a re thought to owe an
obligation not to violate “certa in elementary r ules of decency,” particular em-
ployees, usually “top ma nagement” and other key personnel, may be found to be
“duciaries” who have a trust relationsh ip with their employer.
e cases art iculating the extent of duciary obl igations in the employment
context are usually c oncerned with the specic i ssue of the degree to which de-
parting employees ca n compete with their former employer. ere is consider-
able concern to ensure t hat more junior employees are not denied mobility i n
McKinley, above note  at para. , per Iacobucci, J. d elivering the judgment of t he court.
Fraser and Public S ervice Sta Relatio ns Board, []  S. C.R. . See also Mini stry
of Attorney Gen eral, Corrections Branc h and British Columbia Gover nment Employees
Union, above note  at , as fol lowed in Alberta and AUPE, Loc.  (Smith),Re (),
 L.A.C. (th)  (Moreau) at . e fact ual circumsta nces of those cases rel ate to
public serva nts’ public criticisms of thei r employers.
Guerin v. Canada (),  D.L.R. (th)  (S. C.C.) at , and more recently, LAC
Minerals Ltd. v. Interna tional Corona Resources Ltd . (),  D.L.R. (th)  (S. C.C.) at
See the semin al case of Canadian Aero S ervice Ltd. v. O’Malley, [] S. C.R. , per
Laskin C .J.C. at .
R.W. Hamilton Ltd. v. Aeroquip Corp. (),  O.R. (d)  (H.C.J) at .
Matrix Photocatalytic Inc. v. Purics Environmental Technolog ies Inc., [] O.J. No.
 (Sup. Ct.) at para. ; Helbig v. Oxford Warehous ing Ltd. (),  D.L.R. (th) 
(Ont C .A.).

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