IN THE MATTER OF AN ARBITRATION. Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT. Before THE GRIEVANCE SETTLEMENT BOARD

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1 Crown Employees Grievance Settlement Board Suite Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) Fax (416) Commission de règlement des griefs des employés de la Couronne Bureau , rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) Téléc. : (416) GSB# IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before BETWEEN THE GRIEVANCE SETTLEMENT BOARD Association of Management, Administrative and Professional Crown Employees of Ontario (Globerman) - and - The Crown in Right of Ontario (Ministry of Health and Long-Term Care) Association Employer BEFORE Ken Petryshen Vice-Chair FOR THE UNION FOR THE EMPLOYER James McDonald Sack Goldblatt Mitchell LLP Barristers and Solicitors Yasmeena Mohamed Senior Counsel Ministry of Government Services HEARING May 14, June 29 & 30, July 12 & 13, October 21, December 15, 2004; February 14, 15 & 18, July 11, 13 & 14, 2005.

2 2 Decision I have three grievances before me filed by Mr. D. Globerman. During the last few months of his employment, Mr. Globerman was on a temporary assignment with the Ontario Seniors Secretariat ( the OSS ). Prior to this temporary assignment, he had been employed with the Ministry of Health and Long-Term Care (hereinafter referred to as the Ministry or the Employer ). While employed with the Ministry, Mr. Globerman became involved with establishing and operating a charity known as The Running to Daylight Foundation ( the Foundation ). The circumstances giving rise to Mr. Globerman s grievances, for the most part, relate to his activities with the Foundation. After he was requested in March of 2000 to comply with his duty to disclose a potential conflict of interest, Mr. Globerman disclosed his involvement in the Foundation to the Ministry s Deputy Minister. In a letter dated June 28, 2000, Deputy Minister D. Burns advised Mr. Globerman to either terminate his involvement with the Foundation or terminate his status as a public servant. In a grievance dated May 1, 2001, Mr. Globerman claims that, the employer has improperly, unfairly and unreasonably directed me to terminate all involvement with The Running to Daylight Foundation; and in so doing, has discriminated by reason of my family status and failed to accommodate my family status contrary to the Ontario Human Rights Code. The Association did not pursue the allegation that the Ministry had discriminated against Mr. Globerman contrary to the Human Rights Code. Rather, it took the position that the Deputy s direction to Mr. Globerman violates his fundamental rights of freedom of expression and association as guaranteed by the Canadian Charter of Rights and Freedoms ( the Charter ).

3 3 Mr. Globerman was issued a reprimand for insubordination when an article about him and the Foundation appeared in the September 2001 edition of Homemakers magazine. In a grievance dated November 29, 2001, Mr. Globerman claims that, the employer has improperly, unfairly, unreasonably and without just cause issued to me a letter of reprimand dated October 24, 2001; and in so doing, has discriminated by reason of my family status and failed to accommodate my family status contrary to the Ontario Human Rights Code. In September of 2003, Mr. Globerman and the Foundation co-sponsored and participated in a Forum on Rage Against Ageism in Health Care. This was the culminating event which lead to his discharge. In a grievance dated December 18, 2003, Mr. Globerman complains that, the employer has discharged me without just cause; and that in so doing, the employer has violated my rights under the Canadian Charter of Rights and Freedoms, and has discriminated by reason of my family status and failed to accommodate my family status contrary to the Ontario Human Rights Code. After a suspension with pay pending an investigation, Mr. Globerman was discharged by letter dated December 8, As well as referring to the events which led to his discharge, this letter refers to earlier events which gave rise to his other grievances. The discharge letter reads as follows: Dear David: On October 3, 2003, you were placed on a non-disciplinary suspension, pending the outcome of an investigation into the events leading up to the publication of an article entitled Ageism in health care is really hidden rationing in the September 26, 2003 edition of the Toronto Star. On November 7, 2003, we met with you and your AMAPCEO representative as part of our investigation. This article summarized many of your comments delivered at a Symposium on Ageism in Health Care, an event co-sponsored by The Running to Daylight Foundation on September 23, 2003 at the St. Lawrence Centre in Toronto. The article was based on the

4 4 reporter s coverage of the event supplemented by an interview that you granted the following day. Our investigation has revealed the following: - On May 30, 2001, I was advised in writing that you had resigned from your position as president of the Running to Daylight Foundation and had ceased any active involvement in the organization. Despite this assurance that you had finally complied with the Deputy Minister s previous direction, you never stopped your Foundation related activities and you did not resign as president. Your explanation is that this commitment was obtained under duress. Your position on this matter is that no one, including your Deputy Minister, has the right to restrict your activities related to the Running to Daylight Foundation. - In March of 2003, you indicated that you were fit to return to work from an extensive sick leave that you began in May To facilitate your return to meaningful work, and as a possible settlement for your two outstanding grievances, it was agreed that you would assume a six month acting assignment at the Ontario Seniors Secretariat as a Policy Advisor. On March 29, 2003, when you met with the manager of this position, she advised you that while on this acting assignment, you would be required to disclose any perceived or potential conflict of interest related to the Running to Daylight Foundation or any other activity. You were advised to refrain from any activity that would place you in a conflict of interest. You advised your manager that the Foundation was still inactive. - The co-sponsoring organization of the September 23 Symposium was The Ontario Coalition of Senior Citizens Organizations, a key stakeholder of the Ontario Seniors Secretariat where you have been working on secondment since July 2, You were in preliminary discussions regarding this event at the time you first met with the Ontario Seniors Secretariat. Planning and delivery of the event took place during your secondment. At no time before or during your secondment did you disclose to your manager or to the Deputy Minister the details of your involvement with the Foundation, in particular, your cosponsoring of this event. On the contrary, you were secretive about your activities. As you put it at the November 7 meeting, you did not want another hassle. - As the president of the Running to Daylight Foundation, you formed a relationship with The Ontario Coalition of Senior Citizens Organizations. You indicated at our meeting that this relationship was formed for the purpose of directing financial support to your Foundation. - The Running to Daylight Foundation was instrumental in promoting and staging the Symposium, giving your phone number and the Running to Daylight address as a contact on promotional and resource material. You were a key speaker at the event. - On September 19, 2003, your manager at the Ontario Seniors Secretariat saw a

5 5 promotional flyer for this Symposium. She expressed her alarm and concern to discover that the Running to Daylight Foundation was co-sponsoring this event since you had previously told her that the Foundation was inactive. When she asked you what your involvement would be and why you had not disclosed this in advance, you indicated that she had no cause for concern. You still did not disclose that you were a speaker at this event. By way of background, let me remind you of all of the events that has brought us to where we are today. On March 22, 2000, having seen and heard about your new Foundation, I met with you to express my concern that your activities as the president of the Running to Daylight Foundation may be a conflict of interest. As a result you made a disclosure to the Deputy Minister on April 28, On June 28, 2000, the Deputy Minister communicated his opinion to you in writing, advising you to either terminate your status as a civil servant or terminate all involvement with the Running to Daylight Foundation. The letter contained the opinion that continued involvement with the Foundation, while a civil servant, constituted at least a perceived and potential conflict of interest. The letter made it clear to you that a public servant must avoid all conflicts of interest, whether actual, potential or perceived. On February 12, 2001, the Running to Daylight Foundation appeared as a presenter on a standing committee agenda for Bill 135, Public Hospitals Amendment Act. Although you did not appear at this committee meeting, the speech appears on the hard drive of your computer so it is clear to me that you are the author. The content of the speech was critical of the quality of care received by seniors in the publicly funded health care system in Ontario. On February 17, 2001, an article appeared in the Toronto Star entitled Group helps seniors navigate health system. As well as being further evidence that your Foundation was still active, the article also contained critical comments regarding the quality of care the elderly receive in the publicly funded health care system. The columnist refers to you as Globerman, who ironically is a financial consultant with the Ontario Ministry of Health.. In the September 2001 edition of Homemakers Magazine, an article appeared entitled Live or Let Die. This article contained further criticism from you regarding the quality of the publicly funded health care system. On October 24, 2001, I issued a letter of reprimand for being insubordinate to me and to the Deputy Minister by your continued association with the Foundation, thus perpetuating the conflict of interest. You were warned that further actions that perpetuate this conflict of interest would result in further discipline, up to and including dismissal. To summarize, the Ontario Seniors Secretariat has advised me that they have lost all confidence in your ability to carry out your duties as a Policy Advisor, free from a conflict of interest. They no longer trust that you are able to exercise the judgment required of that position, which requires frequent interface with external stakeholders for the purpose of participating on working groups and committees on behalf of the Secretariat. This participation, in turn, requires an understanding of political sensitivities across ministries and sectors. In your recent private activities you have not displayed such understanding.

6 6 I have also lost all confidence that you will ever remove the conflict of interest that flows from your participation in the Running to Daylight Foundation and your status as a civil servant. You have been directed to terminate all involvement in the Foundation or terminate your status as a civil servant. You have done neither. Your actions in the past and in particular, your recent participation in the Symposium on Ageism in Health Care demonstrate a conscious decision on your part to disobey a direction from the Deputy Minister. This constitutes insubordination, a perpetuation of a conflict of interest and a breach of you duty of trust, loyalty and good faith owed to the employer, the Crown in Right of Ontario. Your actions have undermined your employment relationship to the point where your continued employment is no longer possible. As a result, by the authority delegated to me by the Deputy Minister under Section 22 (3) of the Public Service Act, I hereby dismiss you for cause, effective today. You have the right to grieve under Article 20 of the AMAPCEO collective agreement April 1, 2001to March 31, Please return all Ministry of Health and Long-Term Care and Ontario Seniors Secretariat assets to Archie Outar by December 31, Any personal effects will be sent to you. The Association takes the position that the Ministry and the Deputy Minister were wrong when they determined the Mr. Globerman s involvement with the Foundation constitutes at least a perceived and potential conflict of interest. As noted previously, it also claims that the Ministry violated Mr. Globerman s Charter rights. The Association takes the position that there was no just cause for the reprimand issued to Mr. Globerman and for his discharge. The Association seeks reinstatement for Mr. Globerman and compensation for his losses. Thirteen hearing days were required for these grievances, including almost three days for argument. Well in excess of one hundred documents were filed as exhibits. I concur with counsel for the Association s assessment that this is a complicated case. The Employer called four witnesses, namely, Mr. M. Springman, Counsel and Group Leader in the Ministry s Legal Service Branch, Mr. A. Outar, Manager, Finance and Information, Health Care Programs, Toronto Region, Ms. M. Weber, Regional Director, Toronto Region and Ms. E. Esteves,

7 7 Manager, Policy Initiatives, in the OSS. The Association called Mr. Globerman to testify. In determining the facts, I considered the oral and documentary evidence and the submissions relating thereto. I resolved conflicts in the evidence by utilizing the usual tests, including an assessment of what is most probable in the circumstances. I note that Mr. Globerman was not present for all of Ms. Weber s testimony. Before the commencement of the hearing on October 21, 2004, Mr. Globerman made a statement to Ms. Weber which caused her to become upset. She indicated that she was not prepared to continue with her testimony on that day and that she did not want to continue her testimony at a later time in the presence of Mr. Globerman. Without the need for any intervention from me, the parties agreed to adjourn the hearing for that day and that Mr. Globerman would not be present for the remainder of Ms. Weber s testimony. Although not in the hearing room, Mr. Globerman was able to hear the remaining testimony of Ms. Weber and consult with counsel by telephone. Before addressing the specific circumstances giving rise to each grievance, it is helpful to set out a general overview of the facts. When this hearing commenced in May of 2004, Mr. Globerman was fifty-two years of age. He commenced his employment with the Ministry in July of During the relevant period, Mr. Globerman was employed as a senior financial consultant in the Health Care Programs Division of the Ministry s Toronto Region. This position is included within the Association s bargaining unit of professional and supervisory public servants. Mr. Globerman reported to Mr. Outar, his Manager, and Mr. Outar reported to the Regional Manager, Ms. Weber. In general, the Ministry funds and administers the health care system in Ontario and it regulates hospitals and nursing homes. With a budget in excess of four billion dollars, the Toronto Region has responsibility for most of the health institutions within its area, including hospitals, long-term care facilities and various community agencies. Mr. Globerman was the lead for the mental health program in the Toronto Region, with most of

8 8 his time devoted to financial management, analysis and monitoring of the Centre for Addiction and Mental Health ( the CAMH ). Mr. Globerman created the Foundation to honour the life of his father, Mr. Ben Globerman. Ben Globerman died in 1996 at an Ottawa hospital at eighty-five years of age from the effects of a stroke. Mr. Globerman strongly believes that his father received sub-standard medical care, that such care was directly responsible for his death and that the reason his father did not receive appropriate care was because of his age. After meeting others who also believed their elderly relatives received sub-standard care, Mr. Globerman decided to create the Foundation to address ageism in the health care system and to improve the standard of care for the elderly, particularly when they are in hospitals and long-term care facilities. Between 1997 and October of 1999, Mr. Globerman spent considerable time in developing the Foundation. In 1997, the Foundation was registered with the Toronto Community Foundation, an umbrella organization that provides assistance to smaller funds. During this initial period, Mr. Globerman solicited financial and other support for his concept, defined the goals of the Foundation, recruited advisory and honorary Board members, a special consultant and prepared for the launch of the Foundation. The Ministry discovered a record of these activities on the hard drive of Mr. Globerman s Ministry computer. A media release sent out prior to the launch of the Foundation indicates that the Foundation will provide elderly patients with Patient Representatives who will help them access quality health care, act as intermediaries with health care professionals when needed and educate the patient and family. The media release also indicates that, The launch begins an ambitious fund-raising program for the innovative support program that will provide representatives for the

9 9 elderly, initially starting in the Ottawa and Toronto areas. As a Foundation pamphlet makes clear, the Foundation would not provide patient representatives directly to elderly patients. Rather, it would allocate funds to registered charities, such as nursing and seniors organizations, to allow them to provide support for the elderly. The launch of the Foundation occurred on October 25, 1999, in the Queen Victoria Ballroom of the Sutton Place Hotel in Toronto. Ms. Jane Hawtin, a television/radio broadcaster, made the opening and closing remarks. Presentations were made by five individuals, including Dr. Carolyn Bennett, MP for the riding of St. Paul s in Toronto, Councillor Anne Johnston representing the Toronto Task Force on Seniors and Mr. Globerman, as President of the Foundation. In written material provided at this event, a biography for Mr. Globerman indicates that, Foundation President David Globerman is a financial consultant with the Health Care Programs Division of the Ontario Ministry of Health and Long Term Care. He has worked on a number of health care issues in the Ministry s mental health, substance abuse and corporate policy areas since he joined the Ministry in 1985 This material also discloses that the honorary Board members of the Foundation include Dr. Carolyn Bennett, Jane Hawtin and Karen Kain. Dr. Michael Gordon is described as a special consultant to the Foundation. The written material refers to vision and mission statements, and the values and goals of the Foundation. The goals of the Foundation are as follows: 1. To provide patient representatives, who on behalf of the patient and family, will confer with the health care team to review the treatment and care provided and work to resolve outstanding issues. 2. To educate and consult to patients and families, to make them informed, active and effective participants in the decision-making around treatment and care. 3. To affect change at the system level by providing public education, stimulating discussion, fostering research, participating in the development of public policy,

10 10 collaborating with planners and working with service providers, professional associations and regulatory bodies around issues relating to the access and quality of treatment and care of the elderly. The Foundation pamphlet, under the heading THE NEED notes that, Furthermore, it is important that the planning and funding of our health care system keep pace with the needs of an aging population. This can only occur if the opinions of elderly patients and their families are given voice in those areas responsible for developing and managing the system. The pamphlet advises where contributions to the Foundation may be directed. One of the purposes of the launch, as evidenced by the media release, was to announce the existence of the Foundation and to generate some media attention. I was provided with a number of articles in publications that referred to Mr. Globerman and the Foundation. There was no suggestion by Mr. Globerman that the articles contained any inaccurate information. In an article entitled Ageism is rampant in health care that appeared in the Life section of the Toronto Star on October 30, 1999, Mr. Globerman and the Foundation were featured. A picture of Mr. Globerman, his father and nephew accompanied the article with the notation that the Foundation had been launched that week. The article made brief references to Ben Globerman s hospital experience, to the Foundation s efforts to raise money to help community organizations train and provide patient representatives and to some of the Foundation s Board of Directors. The author noted that Mr. Globerman ironically works in the policy branch at the Ontario Ministry of Health. In the January 17, 2000 edition of MacLean s, an article entitled All in the Family dealt with taking care of aging relatives and the shortcomings of institutional

11 11 care. The reference to Mr. Globerman and the Foundation is as follows: David Globerman, for one, was so incensed by the care his father received by an Ottawa hospital in 1996 that he started the Running to Daylight Foundation, a Toronto-based organization devoted to improving institutional eldercare. Globerman, 46, says he believes his 85-year old father was given low priority by medical staff because of his age: he died within weeks of entering hospital, largely Globerman believes, because doctors treated him for pneumonia when in fact he had suffered a stroke. Clearly, there is a bias in the health-care system against the elderly, says Globerman, who is a financial consultant to the Ontario ministry of health in Toronto. As a society, we don t value them. So when there is a lack of resources, they fall to the bottom of the barrel. Mr. Globerman and the Foundation were mentioned in a Sunday Sun article on February 5, 2000, entitled Looming crisis for elderly. After referring to Mr. Globerman as a financial consultant with the Ministry, his father s treatment and the purpose of the Foundation, the author wrote: He worries that kind of neglect of the elderly may only become more prevalent as more seniors flood an overcrowded, under funded system, especially in a society that does not particularly value the elderly. You have a recipe for disaster warns Globerman. Right now, the number of Canadians 65 and older is one in eight. When I m 65, it ll be one in five. It s time now for the baby boomers to take responsibility for improving the health- care system for our parents and ourselves because we re not that far behind. In an Ottawa Citizen article that appeared on November 23, 1999, the author writes about the Foundation, Mr. Globerman and the goals of the Foundation, particularly the funding of patient representatives. After commenting on the fact that in twenty years the number of persons sixty-five years and older will be one in five, Mr. Globerman is quoted as saying, It is going to be an issue that affects everybody because, unfortunately, the health system is not working the way it should. Because if it did, there wouldn t be a need for an organization like this.

12 12 Mr. Globerman did not consider it necessary to advise the Ministry about his activities with the Foundation. Ms. Weber became aware of his involvement when some of the articles in the press came to her attention. She was immediately concerned about his involvement with the Foundation and what he said about the health care system, given his position as a senior financial consultant with the Ministry. She took some time to review the conflict of interest policy and got advice from the Ministry s Human Resources Division. Ms. Weber then met with Mr. Globerman on March 22, She provided Mr. Globerman with a copy of the Government of Ontario Conflict of Interest and Post Service Directive for Public Servants and Public Officials ( the Conflict of Interest Directive ), a directive based on Regulation 453/97 under the Public Service Act. She reviewed certain provisions of the Conflict of Interest Directive with him in detail. Ms. Weber also told him that his activities with the Foundation may be in conflict with his role as a senior financial consultant and she asked him to comply with the duty to disclose set out in section 23 of the Conflict of Interest Directive. Mr. Globerman complied with his duty to disclose by filing a written submission to the Deputy Minister D. Burns dated April 28, He referred to his position with the Ministry as that of a Regional Financial Consultant. His submission referred to the purpose and activities of the Foundation in detail and he set out his views on why there was no conflict of interest. Mr. Globerman included with his submission the material about the Foundation that was available at the launch on October 25, 1999, including the pamphlet, the media release and a document disclosing who was on the Honorary Board. The package relating to Mr. Globerman s disclosure was sent to Mr. Springman by the Deputy Minister s office. Mr. Springman has been counsel in the Ministry s Legal Services Branch since July of 1991, and a group leader for over four years. Prior to joining the Ministry,

13 13 he was with the Ontario Law Reform Commission for over seventeen years and was Director for six years. He has also taught law at Osgoode, the University of Toronto and Queen s. For the last thirteen years, Mr. Springman has been the lawyer who deals with the conflict of interest issues that arise in the Ministry. Mr. Springman reviewed the package consisting of Mr. Globerman s written submissions as well as the information about the Foundation. He then consulted with Ms. Weber to determine Mr. Globerman s duties as a senior financial consultant and then compared his role with the Ministry with his activities with the Foundation. Mr. Springman reviewed previous conflict of interest files where a public servant performed services for a charity. He then prepared a draft opinion for the Deputy Minister about whether Mr. Globerman was in an actual, a perceived or a potential conflict of interest, as well as a draft letter to Mr. Globerman for the Deputy Minister to sign. Ms. Weber and Human Resources reviewed and approved the draft opinion. Mr. Springman concluded that Mr. Globerman was in an egregious conflict of interest that could not be managed and that the only option in the circumstances was for the Deputy Minister to direct Mr. Globerman to resign from the Foundation or resign from his position with the Ministry. The Deputy Minister agreed with Mr. Springman s opinion. In a letter dated June 28, 2000, Mr. Burns provided Mr. Globerman with the following directive: Re: Conflict of Interest (Running to Daylight Foundation) Thank you for your April 28, 2000 letter advising me of your involvement in the Running to Daylight Foundation, The Ben Globerman Memorial. You have asked my advice concerning whether this private activity constitutes a conflict of interest under Regulation 453/97, made under the Public Service Act, or under the conflict of interest directives of the Ministry.

14 14 A public servant must refrain from engaging in any private conduct that would place him or her in an actual, potential or perceived conflict. In our view, your public service responsibilities and your active role in a charity whose goals and policies may wholly or partly conflict with those of the Ministry places you in at least a perceived and potential conflict of interest. As a public servant, you have a broad advisory and resource allocation role in the area of mental health services, an area that relates in part to the care of the elderly (the exclusive focus of the Foundation). Yours responsibilities include the provision of advice and services to transfer payment agencies, consumers and members of the public respecting Ministry policies, guidelines, procedures and practices. You are also to provide advice on the allocation of Ministry funds within Toronto Region. These ministerial duties are particularly problematic in light of the stated vision and goals of the Foundation and your central position in it. With respect to advancing the interests of the elderly, the policies that you actively advocate on the part of the Foundation might well clash with some or all of the Ministry policies for which you are directly or indirectly responsible as a public servant. Accordingly, a reasonable perception and potential is that this difference of views would or might influence or detrimentally affect your ability to perform those ministerial duties, particularly the more public duties that you see as contrary to the goals of the Foundation. A further reasonable perception is that the Foundation has or might have some unfair advantage over other charities as a result of your position in the Ministry. I note, in this connection, that your biography accompanying the creation of the Foundation specifically indicated that you were employed by the Ministry. This information may create the impression that you have a kind of expertise, or experience in the Ministry, and perhaps Ministry contacts, that could benefit the Foundation. Given my view that your private involvement with the Foundation, however commendable, constitutes at least a perceived and potential conflict of interest, it is my advice that you either terminate all such involvement or terminate your status as a public servant. Thank you for seeking my advice in accordance with the Public Service Act regulations and Ministry directives. In December of 2000, many months after the Deputy s directive, Ms. Weber asked Mr. Globerman if he had responded to the Deputy Minister s letter. He responded by indicating that the Deputy s letter did not indicate that a response was required. As Ms. Weber was attempting to address compliance with the Deputy s directive to Mr. Globerman, she became aware of the agenda for a Standing Committee of the Legislative Assembly dealing with Bill 135, an act to amend the Public Hospitals Act to regulate the use of restraints that are not part of medical

15 15 treatment. The agenda disclosed that Jane Hawtin and Mr. Globerman as President would be appearing before the Standing Committee on behalf of the Foundation on February 13, In light of the Deputy s decision, Ms. Weber was concerned that Mr. Globerman was continuing to participate in Foundation activities. Ms. Weber met with Mr. Globerman on February 6, 2000, to discuss his attendance before the Standing Committee. Mr. Outar also attended the meeting. Although Mr. Globerman believed that his attendance before the Standing Committee was not problematic, Ms. Weber impressed upon him that he should not participate or attend at the event. During the meeting, Mr. Globerman discussed the Foundation and his view that many seniors are not receiving proper medical attention in a health care system that has issues relating to a shortage of nurses and medical staff. He indicated that he could not resign because he is an integral part of the Foundation and that he also needed a job. Later that day, Mr. Globerman advised Ms. Weber that he would not appear before the Standing Committee and that he would remove references to his name from the presentation. At that time, Ms. Weber told Mr. Globerman to take two days off with pay to decide how he will respond to the Deputy s directive. Ms. Jane Hawtin made the presentation to the Standing Committee on behalf of the Foundation. Mr. Globerman wrote the presentation, as evidenced by the fact the presentation was on the hard drive of his Ministry computer. Ms. Hawtin spoke at some length before the Standing Committee indicating the Foundation s support for the Bill 135. During the presentation, reference was made to some concerns of the Foundation, namely the cutbacks in nursing and other health care resources and the fact that there are not enough safeguards built into the system. The presentation included the comment that, We would not be adjusting the standards to what we are willing to finance but rather adjusting the finances needed to meet the standards. It also included the following perspective: While it s true that the responsibility for

16 16 guaranteeing access to the highest-quality care is the responsibility for all of us the funders, the planners, the service providers, the professional associations, the consumers, and the media the ultimate responsibility has to lie with government. The buck has to stop somewhere. Between February and May of 2000, after the meeting in which Ms. Weber told him to decide how he would respond to the Deputy s directive, Mr. Globerman, through counsel and at times with the assistance of his bargaining agent, attempted to convince Ministry officials that there was no conflict of interest or that he could alter his role with the Foundation to eliminate any conflict. During this period, Mr. Springman continued to be involved in providing advice to Ministry officials. In a letter dated February 21, 2001, to Ms. Weber, Mr. Globerman s counsel raised a number of matters on behalf of Mr. Globerman. In response to the description of Mr. Globerman s duties and responsibilities as set out in the Deputy s directive dated June 28, 2000, she wrote as follows: In particular, Mr. Globerman s funding responsibilities as a Financial Consultant at the AM-19 level, are restricted to community health programs and the Centre for Addiction and Mental Health ( CAMH ) which is a specialty psychiatric hospital. Community mental health programs and the CAMH focus specifically on the seriously mentally ill population, and not the elderly per se. His funding responsibilities for the community mental health programs are restricted to the review of one time and surplus requests and are in an advisory capacity only. Final approval is given by the Regional Director. As far as CAMH, Mr. Globerman is involved in funding analysis (surpluses/deficits) based on objective criteria, and any base or one time allocations are not within his scope but rather within the realm of senior management. Mr. Globerman does not have any direct or indirect influence on the funding of general hospitals, long-term care facilities, community care access centres or other organizations that deal with the elderly as the majority of their target population. The letter notes that the Foundation has not requested funding from the Ministry and that it does not intend to do so. It also indicates that any material the Foundation distributes will no longer refer to Mr. Globerman s position with the Ministry and that Mr. Globerman will make a

17 17 concerted effort to ensure that any coverage of the Foundation will not mention his involvement with the Ministry. The point is made that the Foundation is complementary to the work of the Ministry, just like other charities such as the Cancer Society and the Kidney Foundation. Counsel expressed the hope that the parties could meet and resolve the issues. In a written response to Mr. Globerman dated March 5, 2000, Ms. Weber advised that the Deputy Minister had reviewed the information provided from his counsel and that the Deputy concluded that Mr. Globerman was still in a conflict of interest. She indicated that the Ministry was prepared to meet to discuss whether the conflict of interest can be eliminated. The meeting between Mr. Globerman and his representatives and Ministry officials took place on March 22, In a letter dated March 29, 2001, sent to Ms. Weber subsequent to the meeting, counsel for Mr. Globerman put forward the following two options for the Ministry to consider: Option 1 Mr. Globerman remains as President of the Running to Daylight Foundation but will focus his involvement on fund-raising for the Foundation and answering queries on behalf of the public (e.g. information about the Foundation, referral to other services, referral to patient representatives, hearing complaints, offering suggestions for resolution of clinical impasses). In an effort to reduce his public profile and visibility, he would not be involved in any public speaking about the Foundation or the health care system nor would he liaise with the media regarding the organization. Option 2 Mr. Globerman resigns as President of the Running to Daylight Foundation but will focus his involvement on fund-raising for the Foundation and answering queries on behalf of the public (e.g. information about the Foundation, referral to other services, referral to patient representatives, hearing complaints, offering suggestions for resolution of clinical impasses). In an effort to reduce his public profile and visibility, he would not be involved in any public speaking about the Foundation or the health care system nor would he liaise with the media regarding the organization. Counsel indicated in this letter that if Ministry still took the position that Mr. Globerman must remove himself from all involvement with the Foundation, he would comply without prejudice to

18 18 his right to file a grievance. On behalf of Mr. Globerman, counsel requested that he be granted until May 31, 2001, to develop an infrastructure to take his place. It was asserted that Mr. Globerman needed the time to select and train a new president, personnel to take over fundraising and administrative duties and volunteers to handle the large volume of public queries he receives. In a letter to Mr. Globerman dated April 23, 2001, Ms. Weber responded on behalf of the Ministry by indicating that the proposed options would not serve to remove the conflict of interest. In this letter, Ms. Weber indicated that Mr. Globerman could have until May 31, 2001 to terminate all involvement with the Foundation, with certain conditions. One of the conditions was that Mr. Globerman had to provide, as of May 31, evidence that he has fully complied with the Deputy Minister s directive. He was advised that the failure to provide such evidence may result in disciplinary action. Mr. Globerman found the Ministry s response to his proposals to resolve the dispute bizarre and he concluded that Ms. Weber was not bargaining in good faith. He testified that it was obvious to him that Ms. Weber was trying to destroy the Foundation. In a letter to Ms. Weber dated May 30, 2001, Mr. Globerman s counsel advised her of his decision as follows: Further to your letter to Mr. David Globerman dated April 23, 2001, we advise that Mr. Globerman has resigned from his position as President of the Running to Daylight Foundation. The new President of the Foundation is Danial Globerman. David has ceased any active involvement with the organization. Shortly after receiving the Ministry s response dated April 23, 2001, Mr. Globerman filed his grievance. In early May of 2001, he also provided Mr. Outar with a doctor s note and advised him that he would be taking a medical leave, which he commenced on May 14, Mr. Globerman testified that he found his dealings with the Ministry over the conflict of interest

19 19 issue to be very stressful and that he experienced a deep depression. Mr. Globerman was off work for medical reasons for almost two years. In a letter to Mr. Outar dated February 18, 2003, Mr. Globerman advised him that he would be returning to work on March 3, Mr. Globerman did not actually return to work until July 2, 2003, when he commenced his temporary assignment with the OSS. Approximately four months after Mr. Globerman commenced his medical leave, an article appeared in a magazine that caused the Employer some concern. In an article on ageism entitled Live or Let Die in the September 2001 edition of Homemakers magazine, the author refers to Ben Globerman s hospital experience, the family s lawsuit against the hospital, Mr. Globerman s launch of the Foundation and briefly what the Foundation does. These references are only a small portion of a lengthy article on ageism. Mr. Globerman is referred to in the article as a Toronto financial consultant. This article led to Mr. Globerman s reprimand. Mr. Globerman testified that while on the medical leave he had a conversation with Mr. Outar about the conflict of interest issue which affected his perception of the Ministry s conduct. On March 25, 2002, at approximately the time when the office was being relocated, Mr. Globerman went to the office and discovered that his personnel belongings had been removed. He testified that during a discussion with Mr. Outar about this issue, Mr. Outar told him at one point that Ms. Weber had ordered someone to throw out the boxes with his belongings. Mr. Globerman testified that he did not believe Mr. Outar when he said this because he did not have a track record of being believed. Mr. Globerman testified that he then raised the conflict of interest issue by asking Mr. Outar where all this was coming from and suggested that it was not coming from Ms. Weber, but from the Minister s and Premier s office. Mr. Globerman further testified that he asked Mr. Outar whether their dispute is really about a conflict of interest or is it

20 20 about the issues the Foundation was raising and that Mr. Outar responded that it was about the issues the Foundation was raising. Mr. Globerman then left the office very upset with the view that everything started to make sense as to why the Ministry took an all or nothing approach and why it wanted to shut him and the Foundation down. He testified that he now believed that the Ministry was lying to him and playing games with him. He testified that he concluded that the issue between them related to the substandard care seniors received, not a conflict of interest, and that there was an abuse of power coming from the top. As will become evident, Mr. Globerman relies in part on this conversation with Mr. Outar and the conclusions he reached based on the conversation to justify his subsequent conduct. Mr. Outar testified that the March 25, 2002, conversation was not unlike others with Mr. Globerman where Mr. Globerman would do all the talking and not give him much opportunity to respond. Mr. Outar testified that at times the relationship with Mr. Globerman was very stressful and that Mr. Globerman was abusive in his tone and the words he used. He indicated that he would not respond to many of the things Mr. Globerman said. Mr. Outar strongly denied that he told Mr. Globerman that the dispute was really about the issues the Foundation was raising and never implied that there was involvement from the Minister s and Premier s office. It was put to Mr. Outar during cross-examination that he told Mr. Globerman during this conversation that the Ministry would make his life miserable when he returned to work. Mr. Outar denied that he said this. In his evidence, Mr. Globerman did not indicate that Mr. Outar made such a statement to him. In reviewing the testimony relating to the March 25, 2003 conversation in the context of all the evidence, I find it impossible to believe Mr. Globerman s version of the conversation. Counsel suggested that Mr. Outar s silence in the face of various statements put to him by Mr.

21 21 Globerman amounted to agreement to what Mr. Globerman asserted or at least that it was not unreasonable for Mr. Globerman to believe that Mr. Outar agreed with him. However, Mr. Globerman testified that Mr. Outar specifically told him that the Ministry s concern was with the issues raised by the Foundation and not with a conflict of interest. There is no basis to believe that Mr. Outar would tell Mr. Globerman any such thing. Mr. Globerman may have believed that the dispute had to do more with political considerations than a conflict of interest. However, his testimony about his conversation with Mr. Outar appears to be an effort to prove that his views in this regard were corroborated by the Employer and to rely on this corroboration to justify his subsequent conduct. I accept Mr. Outar s testimony that he did not make the statement attributed to him by Mr. Globerman and that Mr. Globerman was not truthful when he testified that Mr. Outar had conveyed to him that the dispute was not really about a conflict of interest. Mr. Springman testified about a telephone call he received from Mr. Globerman during the course of these events. During this call, Mr. Globerman was yelling at Mr. Springman while alleging that there was a conspiracy by the Government against the Foundation. Mr. Globerman alleged that Mr. Springman knew there was a conspiracy and that he was participating in it. Mr. Springman found the call disturbing. He ended the call by denying any conspiracy and advising Mr. Globerman that he could not discuss the matter further. Mr. Springman noticed from the call display feature on his telephone that Mr. Globerman called him several times after the initial call, but he did not answer. At some point, Mr. Globerman had expressed an interest in securing a position outside of the Ministry. Mr. Outar made inquiries to see if this was possible and his efforts were responsible in part for securing Mr. Globerman a temporary assignment with the OSS. Mr.

22 22 Globerman met with Ms. Esteves on May 29, 2003, to discuss a temporary assignment with Policy Initiatives, OSS. Based on this discussion, Ms. Esteves was prepared to offer Mr. Globerman the temporary assignment. I will comment on this discussion later in more detail. As noted previously, Mr. Globerman commenced working for the OSS as a policy advisor on July 2, While on this secondment, his home position remained with the Ministry. The Foundation co-sponsored and participated in a Forum entitled Rage Against Ageism in Health Care at the St. Lawrence Centre in Toronto on September 23, The other sponsor of the Forum was the Ontario Coalition of Senior Citizens Organizations, a stakeholder of the OSS. Ms. Hawtin was the emcee at the Forum, making the opening and closing remarks. Mr. Globerman, who was identified as the President of the Foundation, also spoke at the Forum. A media release about the Forum notes that the Foundation is also involved in strengthening the healthcare system by providing public education, encouraging discussion, fostering research and participating in the development of public policy. The material distributed at the Forum included a Toronto Star article from the February 17, 2001 edition which refers to the Foundation and describes Mr. Globerman as a financial consultant with the Ontario Ministry of Health. Mr. Globerman was interviewed on the day after the Forum and an article appeared in the Toronto Star on September 26, The article referred to Mr. Globerman, the Foundation and examples of sub-standard care received by the elderly in hospitals and long-term care facilities. Mr. Globerman was not identified in the article as a Ministry employee. Mr. Globerman testified that he began preparing for the Forum in early 2003 and that it occurred on the seventh anniversary of his father s death. Because of his participation in the Forum on behalf of the Foundation and the article in the Toronto Star, Ms. Weber suspended Mr. Globerman with pay pending an investigation. Ms.

23 23 Esteves terminated his temporary assignment. An investigation meeting was held on November 7, 2003, which was attended by Ms. Esteves and Mr. Springman. After spending some time to review its options and the appropriate response, the Ministry terminated Mr. Globerman s employment for the reasons set out in the letter dated December 8, With respect to the delay in moving forward with the conflict of interest grievance, I note that I was advised during opening statements that the parties met with a Vice-Chair in February of 2002 to attempt to settle the grievances which were then outstanding. These efforts were obviously unsuccessful. The settlement discussions led to another proceeding however, eventually all three grievances were scheduled for hearing before me. The Conflict of Interest The Conflict of Interest Directive is based on a regulation under the Public Service Act. The purpose of the Conflict of Interest Directive is to enhance public confidence in the integrity of public servants and the decision making process in government A conflict of interest arises in any situation where an individual s private interests may be incompatible or in conflict with their public service responsibilities. One of the principles every public servant shall conform to is set out in section 6(d) of the Conflict of Interest Directive as follows: When appointed to office, and thereafter, public servants and public officials must arrange their private interests to prevent real or potential conflicts of interest. If a conflict does arise between the private interests of a public servant or public official and the official duties and responsibilities of that individual, the conflict shall be resolved in favour of the public interest. Section 7(a) provides that A public servant or public official who does not comply with the measures in this directive will be disciplined as appropriate. Disciplinary measures may include discharge or termination of employment. The relevant parts of section 10 provide as follows:

24 24 A public servant or public official shall not engage in any outside work or business undertaking: (a) that is likely to result in a conflict of interest (b) that interferes with the individual s ability to perform his or her duties and responsibilities; for example, by placing demands on the individual that are inconsistent with his or her duties or calling into question the individual s responsibility to perform his or her official duties objectively (c) in which an advantage is derived from his or her employment as a public servant or public official (d) in a professional capacity that will, or is likely to, influence or affect the carrying out of his or her duties as a public servant or public official Mr. Springman testified at some length about how he engaged in the exercise of determining whether Mr. Globerman was in a conflict of interest. It is useful to review a portion of his opinion letter to the Deputy Minister in order to appreciate the basis for his conclusion that Mr. Globerman was in a conflict of interest and how this situation should be remedied. After referring in some detail to Mr. Globerman s public service position and the purpose and activity of the Foundation, Mr. Springman writes in his opinion letter dated June 12, 2000, as follows: ISSUES 1. Whether Mr. Globerman s involvement in the Running to Daylight Foundation constitutes an actual, potential or perceived conflict of interest, in breach of the Public Service Act regulations and/or Ministry directives. 2. What action ought to be taken by the Ministry if it is determined that Mr. Globerman is in a conflict of interest. OPINION AND RECOMMENDATION Mr. Globerman s role as the creator and active will of, and the public spokesperson for, a charity whose goals and policies may wholly or partly conflict with those of the Ministry places him in at least a perceived and potential conflict of interest, in breach of the Public Service Act regulations and/or Ministry directives. Accordingly, it is recommended that Mr. Globerman should be given the choice to either terminate all involvement with the Foundation or terminate his employment with the Ministry. The program area agrees with this approach. I have drafted a letter from you to Mr. Globerman reflecting this recommendation.