Laws likely won’t shield leaker, lawyers say
Province’s legislation ‘a pretty high threshold’
Ontario’s whistleblower protection laws likely will not help the provincial bureaucrat fired after confidential draft healthcare reform legislation was leaked to the New Democrats.
That safeguard, as defined in the Public Service of Ontario Act, is intended to ease the path for civil servants who discover illegal behaviour, such as theft, “grave danger to life, health or safety of people or the environment,” or gross mismanagement.
“That’s a pretty high threshold,” employment lawyer Joseph Cohen-Lyons, who has written about public sector whistleblower laws in Public Sector Digest, said Thursday. “If you disagree with the policy, it probably doesn’t meet that threshold, even if you’re very against privatized health care.”
Another employment lawyer, Doug MacLeod, agreed.
“Draft legislation, you’re not going to sneak it by the public,” MacLeod said, noting bills are introduced in the legislature and must pass three separate votes by MPPs following public debate and hearings.
“This would put a real chill on the politicians if they thought anything that they were considering might get leaked before they decided to table it. It’s going to really put a chill on people having frank and open discussions about different policy alternatives,” he said.
“Employees have a duty of confidentiality and fidelity to their employer and this is a clear breech of confidence. This is confidential information that should not be disclosed without consent.” NDP Leader Andrea Horwath has claimed the bill and other leaked documents prove the Progressive Conservative government is creating a new “super agency” to run the healthcare system with new powers to privatize more medical services
Health Minister Christine Elliott has downplayed the draft legislation as an “early version” while denying the privatization charge and promising Ontarians will continue to get medically necessary services paid for through their OHIP cards.
The dismissal of the unnamed bureaucrat will be grieved by the Association of Management, Administrative and Professional Crown Employees of Ontario.
In announcing the firing, Steven Davidson, the secretary of cabinet and head of the public service, emphasized bureaucrats swear an oath of confidentiality that must be obeyed.
That oath states: “I will not disclose or give to any person any information or document that comes to my knowledge or possession by reason of my being a public servant.”
The same principle also applies to workers in the private sector. Many employers, including Torstar,. parent company of the Toronto Star, expect staff to abide by confidentiality measures.
After the firing, Davidson notified the Ontario Provincial Police.
Staff Sgt. Carolle Dionne said Thursday that “the matter is still under review” by the OPP’s anti-rackets branch.
Under Ontario law, whistleblowers must report their concerns to an “ethics executive” or to the office of the province’s independent integrity commissioner.