Ontario’s whistleblower protection laws likely will not help the provincial bureaucrat fired after confidential draft health-care 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.
“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 health-care 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.
Michelle Renaud, the watchdog’s senior adviser for policy and outreach, said “the office does not confirm whether or not it has received a disclosure.”
“Confidentiality is an important component of the disclosure of wrongdoing framework,” said Renaud.
Although the health minister has acknowledged health care in Ontario will undergo a “transformation,” she has said no plans have been “finalized.”
But the documents made public by the NDP state that Premier Doug Ford’s cabinet approved “the full health-care transformation plan” at a Jan. 16 cabinet meeting.
Titled “agency review weekly status report,” the document says there will be an announcement this month and that the government has used focus groups to gauge acceptance of the health-overhaul plan.
A schedule for moving forward with the transformation shows cabinet approvals of board members for the new health-care agency must be made by Feb. 20, when ministers will also revoke appointments to the boards of 20 existing health agencies being folded into the new body.
Robert Benzie is the Star’s Queen’s Park bureau chief and a reporter covering Ontario politics. Follow him on Twitter: @robertbenzie
Rob Ferguson is a Toronto-based reporter covering Ontario politics. Follow him on Twitter: @robferguson1