Central LHIN Governance Manual. Title: Whistleblower Policy Policy Number: GP-003

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1 Central LHIN Governance Manual Title: Whistleblower Policy Policy Number: GP-003 Purpose: Originated: September 25, 2012 Board Approved: September 25, 2012 To set out the LHIN s obligations under the Public Service of Ontario Act with respect to the disclosure of wrongdoing and to establish the Central LHIN process for disclosure and investigation of wrongdoing. Scope: This policy applies to all Central LHIN staff and board members, with relation to Central LHIN operations. This policy is not intended to cover matters of alleged wrong doing related to health service providers. Background: Part VI of the Public Service of Ontario Act, 2006 (PSOA) establishes a process by which public servants may disclose wrongdoing in the public service in Ontario and be protected from reprisal. The protection from reprisal extends to public servants involved in any proceeding under the disclosure of wrongdoing framework (e.g. witnesses). Each organization and ministry of the public service has an ethics executive who is prepared to receive disclosures of wrongdoing. The PSOA also establishes the role of the Integrity Commissioner, an officer of the legislative assembly, with the power and authority to investigate and publicly report on allegations of wrongdoing. The PSOA prohibits any person from taking any action that adversely affects the employment or appointment including working conditions of a public servant because the public servant has made a disclosure of wrongdoing to the ethics executive or to the IC. Other public servants, including those directly involved in an investigation of wrongdoing (e.g. witnesses), are also protected against reprisal. Policy: The Central LHIN endeavors to maintain the utmost integrity in the operation of the LHIN, and the internal controls and operating procedures are intended to detect and to prevent or deter improper activities; however, at times these systems may not provide perfect safeguards against improper conduct. LHIN employees and Board members owe a duty of loyalty to the LHIN, which includes a responsibility to bring to the attention of the Corporation instances of Wrongdoing. The LHIN is committed to complying with the PSOA, Management Board of Cabinet s Disclosure of Wrongdoing Directive (the Directive), and to protecting the funds, assets and resources of the LHIN. Accordingly, it is the Policy of the LHIN to ensure that when an Employee or Board member has reasonable grounds to believe that another Employee or Board member has committed or is about to commit a financial or other Wrongdoing, as defined in this Policy: Whistleblower Policy GP-003 Page 1 of 5

2 a. the employee or Board member may disclose this information through a clearly defined process; b. the matter will be reviewed and, if warranted, investigated by the ethics executive; c. the Employee or Board member will be protected from reprisals; d. the individual who is the subject of the disclosure ( the Subject ) will be provided an opportunity to respond to allegations; e. all parties to an investigation will be treated fairly; f. confidentiality will be maintained to the greatest extent possible; g. if Wrongdoing is found, appropriate remedial and disciplinary actions will be taken. Improper Disclosure will be viewed as Employee misconduct and will be met with appropriate disciplinary action, up to and including termination of employment. Improper Disclosure means a disclosure made in bad faith, which may include providing false information, making disclosures that the Discloser knows are baseless, or making repeated disclosure concerning matters that have been previously examined and determined by the ethics executive. Procedure: 1. A LHIN employee or Board member ( Discloser ) who wishes to disclose a wrongdoing has the following options: report the information internally in writing to his or her ethics executive using the Disclosure of Wrongdoing form; or report the information to the Integrity Commissioner if he or she feels that internal disclosure would not be appropriate. The Integrity Commissioner may investigate the claim directly or refer the matter back to the ethics executive. 2. If unsure, he/she may contact the appropriate director within the organization (e.g. finance department regarding an expenditure issue) or his/her direct manager for guidance. Directors and managers should not provide guidance on whether to disclose or not, but can provide advice on how to make a disclosure and can direct employees where to find more information. To avoid misunderstanding, employees should immediately be informed in writing that directors and managers are obligated to act on information that is provided to them should they consider it to be of a serious nature, whether or not the public servant considers it to be a disclosure under the Disclosure of Wrongdoing Directive. 3. A Discloser may also disclose directly to the Integrity Commissioner if the matter has already been disclosed internally and he or she believes on reasonable grounds that the matter has not been appropriately dealt with. A disclosure may also be made directly to the Integrity Commissioner without prior internal disclosure. When disclosing to the Integrity Commissioner, if there is insufficient detail to allow for an assessment the Discloser may be contacted for additional information. 4. The ethics executive is responsible for assessing every disclosure to determine whether there is enough information to address the issue, and if so, whether the allegation should be addressed via this process or in another forum. In the case of anonymous disclosures where there is insufficient information, the matter cannot proceed. The ethics executive will determine that a disclosure will not proceed in the following circumstances: Whistleblower Policy GP-003 Page 2 of 5

3 i. the subject matter of the disclosure is a matter already being dealt with through another statutory process; for example, there is already a complaint filed with the Ontario Human Rights Commission, or being dealt with by a law enforcement body, ii. the subject matter of the disclosure relates solely to a public policy decision; the disclosure of wrongdoing provisions are not designed to be an avenue for addressing disagreement with a policy decision, iii. the subject matter of the disclosure relates to an adjudicative decision; the disclosure of wrongdoing provisions are not intended to question or consider court or tribunal decisions as these are already subject to judicial review processes, iv. the subject matter of the disclosure relates to prosecutorial discretion; for example, a plea bargain, v. the disclosure is frivolous, vexatious, made in bad faith, or unimportant, or vi. there has been a substantial delay between the subject matter of the disclosure and the disclosure itself, so that proceeding would serve no useful purpose. 5. The ethics executive could also refuse to deal with a disclosure if: a. the disclosure is related to an employment or labour relations matter that could be dealt with through a dispute resolution mechanism, including a grievance procedure it is not the intention to duplicate or replace the procedures already in place to address labour relations, or b. there is another valid reason for not pursuing the matter. Should the ethics executive determine that the matter does not fall within the disclosure framework, he/she has the discretion to address the matter under other applicable policies. 6. While addressing and resolving disclosures, the ethics executive and others involved in conducting and administering the process must ensure the process is fair, timely, and as confidential as possible. Confidentiality will be maintained and identities of those making the disclosure ( the Discloser ), witnesses, and Subjects will be protected except in those situations where the interests of fairness require that that a person s identity be provided to one or more persons. 7. During the process of addressing disclosures, Disclosers and Subjects have the right to be represented or accompanied by another person of their choice (including legal counsel, at their own cost). 8. Subjects who are identified in a disclosure as being involved or responsible for wrongdoing will be informed of the allegations and given the opportunity to respond to them. 9. As the ethics executive proceeds with addressing a disclosure of wrongdoing, all employees and board members are obligated to comply with the ethics executive s direction. Staff or Board members must not obstruct any investigation or process, and they must not destroy, falsify or conceal material or information. Anyone who knowingly makes a false or misleading statement or destroys, alters, conceals or falsifies a document, knowing that it is likely to be relevant to an investigation or proceeding, is guilty of an offence and liable, upon conviction under the Provincial Offences Act, to a fine. 10. During an investigation, the ethics executive cannot require certain types of information including: Whistleblower Policy GP-003 Page 3 of 5

4 information that is certified by the Deputy Attorney General as being information that could jeopardize a criminal proceeding, or that could breach Cabinet privilege Information that is certified by the Commissioner of the Ontario Provincial Police as being information that could compromise an investigation into a criminal matter, or Information that is subject to solicitor-client privilege, or is prepared by a lawyer in connection to litigation. 11. The ethics executive may consult with advisors available to them dependent on the nature of the issue, including legal services, human resources and others. 12. If the allegation of wrongdoing will be investigated, the ethics executive is accountable for the process, including ensuring that the matter is dealt with in a timely manner. Others within the public body may be involved in addressing disclosures; the ethics executive is responsible for providing advice and guidance during the process. 13. If a Board or arbitrator finds that reprisal took place, it may order a remedy for damages incurred, for example compensating for loss of remuneration. Any public servant found responsible for the reprisal is subject to disciplinary measures, including suspension or dismissal and if guilty of an offence may be prosecuted and liable upon conviction, for a fine. Reporting The ethics executive is responsible for informing the Discloser in writing whether the disclosure was not accepted, accepted but not investigated or investigated and concluded. Where the disclosure was accepted, the ethics executive is responsible for informing the Subject how the disclosure was dealt with. The ethics executive must keep well-documented records of disclosures and the results of each disclosure. Definitions Ethics Executive The Chair of the Central LHIN Board of Directors is the ethics executive for appointees as prescribed under subsection 71 (1.1) of the Act. For Central LHIN staff, the Chief Executive Officer is the ethics executive, as prescribed through O. Regulation 147/10 s.2 (1). Public Servant The term includes employees and appointees of public bodies. Local Health Integration Networks are listed as Public Bodies under Regulation 146/10 of the PSOA. Reprisal Reprisal includes, but is not limited to, ending or threatening to end employment or appointment, discipline, threat of discipline or penalty, and coercion or intimidation. Employees of public bodies who believe they have been the subject of a reprisal have the right to have the matter dealt with: through binding arbitration under a collective agreement or filing a grievance under the arbitration provisions of a collective agreement, through application to the Ontario Labour Relations Board; Whistleblower Policy GP-003 Page 4 of 5

5 through the Public Service Grievance Board for employees appointed by the Public Service Commission under Part III of the Act who are not covered by a collective agreement; through the Ontario Labour Relations Board for employees who do not have a right to binding arbitration of the grievance under a collective agreement; or under the Police Services Act if a person is subject to a rule or code of discipline under the Act. Wrongdoing The following conduct of a public servant is considered wrongdoing: a contravention of an Act (federal or provincial) or regulation, acts or omissions that create a grave danger to life, health or safety of persons, or to the environment, gross mismanagement (e.g. gross waste of money, abuse of authority, abuse of public assets), directing or counselling a person to commit a wrongdoing listed above. In addition, there are three types of information that cannot be divulged, either in a disclosure or in any process addressing the disclosure. These exceptions are well recognized in law: information that is subject to solicitor-client privilege; information that would reveal the substance of the deliberations of Cabinet (Cabinet privilege); or anything that is prepared by or for counsel for a ministry or public body for use in giving legal advice or in regards to litigation. References and Supporting Documents: Public Service of Ontario Act, 2006 Management Board of Cabinet s Disclosure of Wrongdoing Directive Central LHIN Disclosure of Wrongdoing Form Review: This Policy will be reviewed annually by the Central LHIN Audit Committee. Whistleblower Policy GP-003 Page 5 of 5