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Government Sprawl Fighter Vindicated

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In Adjala-Tosorontio
Nov 16th, 2018
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Speaking truth to power is not a conflict of interest for professional planners, board rules

News release from Donnelly Law

As the Globe and Mail reported on Nov 9, 2018, Mr. Victor Doyle MCIP, RPP has won his case against the Government of Ontario – he did not violate government ethics, his actions were not a conflict of interest and he was unfairly disciplined for daring to speak truth to power.

https://www.theglobeandmail.com/canada/article-planner-behind-ontarios-greenbelt-wins-discipline-case/

This is the finding of the Public Service Grievance Board (PSGB) in its landmark decision of October 26, 2018.

Vindication for Mr. Doyle comes after a 10-year battle to enshrine the ability of professional planners to speak truth to power. This includes two hearings before the PSGB on Mr. Doyle’s challenges to being found in conflict of interest. It also follows a multi-year investigation by the Office of the Integrity Commissioner into Doyle’s complaints which led to recommendations to the Secretary of Cabinet to clarify the role and independence of professional planners in the Ontario Public Service.

Doyle was found in conflict, disciplined and demoted twice for publicly expressing professional planning views regarding development industry efforts to open up Simcoe County to GTA urban sprawl and to undermine both the Greenbelt Plan and Growth Plan during their recent 10-year review.

In May 2017, Doyle released a paper entitled, “The Growth Plan and the Greenbelt – Setting the Record Straight” and gave an interview with the Globe and Mail. The paper refuted misleading, selective and/or omitted facts arising from a multi-pronged, multi-year communications strategy by the development industry aimed at discrediting the Greenbelt and Growth Plans.

https://www.theglobeandmail.com/news/toronto/ontarios-greenbelt-architect-launches-defence-of-anti-sprawl-policies/article34965671/

Shortly thereafter, Mr. Doyle received a letter from the Deputy Minister of the Ministry of Municipal Affairs stating that he had been found in “conflict of interest” for releasing the paper as it constituted an “outside undertaking” which interfered with his abilities to perform his duties to the Crown. He was summarily re-assigned to a virtually empty floor, separated from all other professional planners, and given no staff or access to the government database.

Ontario’s most senior growth management planner and “architect of the Greenbelt” had been silenced – once and for all.

This discipline and demotion was clearly an effort to permanently silence Mr. Doyle despite him being at the epicentre of provincial planning in the Greater Golden Horseshoe for 30 years. As a result, he resigned, but only on condition that he could proceed with his principled challenge of the finding of conflict of interest.

The Board’s decision states that release of the paper:

• Did not “exhibit bias” (prgh 82);

• did not “impair his ability to exercise independent professional judgement”; (prgh 87)

• was not “an outside undertaking that would likely have interfered with his duties as Manager of Planning Innovation” (prgh 99); and

• “was not a conflict of interest” (prgh 144)

“While extremely disappointed that I had to expend such efforts, suffer the stigma and career limitations I have incurred, and be precluded from further serving the people of Ontario as a public servant, I felt it my duty to the public and the planning profession to steadfastly pursue the fundamental principle at issue”, Mr. Doyle said after receiving the decision.

As Doyle’s counsel Donnelly Law stated, it was our submission that this principle focuses on “the right and responsibility of professional planners in the Ontario Public Service to provide objective analysis and advice directly to decision-makers and the public, and the protection of their independence to do so – even if that advice challenges or differs with Government’s favoured industries and contributors.”

This principle also includes acknowledgement that the primary responsibility and loyalty of professional planners is to the “public interest”.

In this regard, the Grievance Board benefitted from the expert evidence of Mr. Anthony Usher, RPP, past president of the Ontario Professional Planners Institute (OPPI). Mr. Usher testified that Mr. Doyle was a well-respected fellow OPPI member and that at all times he acted in compliance with the professional standards of the planning profession which are contained in the Code of Practice and Standards of Practice enacted under the authority of the Ontario Professional Planners Institute Act, 1994.

In fact, Mr. Usher was of the opinion that maintaining independence, and in certain instances loyalty to the public interest, was a superior duty than that owed the government and Mr. Doyle’s political masters. As the Board stated, “all the evidence before me supports a finding that Mr. Doyle was single-mindedly pursuing the public interest by defending the government’s policies.”

In our argument to the Board, we drew the analogy that silencing Mr. Doyle is no different than the Harper government’s efforts to silence our climate change scientists – even though taxpayers funded those scientists to provide research to help inform them as they vote on various party platforms.

The decision will hopefully help lift the “chill” on other professional civil servants who witnessed Doyle’s treatment for taking a stand while it also admonished the government and promoted procedural changes to avoid such situations in the future.

As the Board stated, “It is quite remarkable that a senior civil servant who had been entrusted with some of the most important responsibilities in land use planning in the province for decades, with no criticism of his performance, was not apprised of the employer’s concerns and proposed solution (ie., discipline/demotion) and asked what he had to say before he was sidelined”. (para. 54) The Board found that the Government had breached “the duty of fairness owed to Mr. Doyle”.

The Board went on to conclude that “it is anticipated that the employer will heed the clarification above regarding the duty of fairness as a term and condition of employment, and afford other public servants the opportunity both to be apprised of the allegations against them and be afforded an opportunity to be heard prior to determinations that can negatively affect career and/or reputation.”

We couldn’t agree more.

In closing, Doyle’s evidence was that there are systemic obstacles to ensuring the public is made aware of independent professional advice from taxpayer funded experts – evidence which the Board and Government acknowledged but which were beyond the scope of the decision. Mr. Doyle raised the concept of creating an Office of the Chief Planner for Ontario – similar to the Chief Medical Officer of Health – as the best way around this systemic failure – since the Chief Medical Officer is a 5 year multi-party appointment with a mandate to speak publicly. He plans to use this decision to promote this concept as a permanent remedy to an enduring problem.

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