Canadian Employment Law Today

July 24, 2013

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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CELT July 24 2013:celt 467.qxd 13-07-09 2:45 PM Page 12 July 24, 2013 City tears down building inspector's side job THIS EDITION of You Make the Call features a city building inspector who was told to curb his independent business. Pier De Simone was a building inspector for the City of Windsor, Ont., inspecting construction projects and enforcing city by-laws, zoning and property standards. Employed with the city since 1989, De Simone also operated an outside business of preparing architectural drawings for construction projects. De Simone made sure to stay outside of the building plan approval process for city permits to avoid potential conflicts of interest. Though building Published biweekly 22 times a year Subscription rate: $299 per year Customer Service Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: Carswell.customerrelations@ Website: Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Publisher: John Hobel Managing Editor: Todd Humber Editor: Jeffrey R. Smith E-mail: ©2013 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. We acknowledge the financial support of the Government of Canada, through the Publications Assistance Program (PAP), toward our mailing costs. GT #897176350 Publications Mail Registration No. 40065782 12 You make the call How would you handle this case? Read the facts and see if the judge agrees inspectors normally weren't involved in the approval process, he still preferred not to know when an application involving his drawings was made. He also didn't accept commissions for projects within the city limits. De Simone also followed a city policy that prohibited conflicts of interest that could affect his job performance and required him to inform the building commissioner prior to accepting any off-duty employment that could affect his duties with the city. De Simone usually informed his supervisors of any projects within the city he worked on. In November 2010, the city adopted an employee code of ethics and policy with a disclosure form for potential conflicts of interest. De Simone filled out the form in February 2011, describing his off-duty business and how he advised his supervisor when any jobs arose within city limits. In August 2011, De Simone's manager advised him he should not take any design work within the city. De Simone disagreed there were any issues, but the following month the city formally told him to "cease preparing drawings for clients within the City of Windsor boundaries." De Simone argued any member of the public could check records and see he wasn't involved in inspections of projects involving his work. However, the city was concerned about the appearance of a conflict of interest. It didn't want another incident similar to 10 years earlier, when a prominent citizen was upset that a plan prepared by a city building inspector wasn't approved. The citizen thought the application should have been approved since the design had been prepared by a city building inspector. ✓ ❑ Should the inspector have been allowed to continue with his side business? OR ✓ ❑ Were the conflict-of-interest concerns reason to limit the inspector's off-duty business? IF YOU SAID the city's concerns were wellfounded, you're right. The arbitrator found a conflict of interest has certain requirements: the existence of a private interest known to the public office holder, and a nexus between the private interest and public responsibilities that could influence the latter. "In my opinion municipal governments should be encouraged to review, not be discouraged from reviewing, the adequacy of their conflict of interest (COI) policies," said the arbitrator. The arbitrator noted the test for COI should not be so low as to include "virtually any hypothetical projection of apparent conflict" to justify a prohibition of outside activity. However, the fact public employees "are routinely and constantly engaged with regulatory approval and enforcement processes, which affect all players in the construction industry" created a high bar for COI. Though De Simone hadn't done anything wrong, the arbitrator found it plausible his colleagues or the public would view his drawings as "professionally acceptable" without a close inspection. The risk of perception that his drawings could be favoured was a legitimate concern for the city and therefore its order to cease any outside projects within the city was reasonable, said the arbitrator. However, the arbitrator also found the policy change warranted reasonable notice to allow De Simone a transition period in which to manage his business and any clients affected. De Simone was entitled to seek compensation for losses within a six-month period from the new policy's implementation. See Windsor (City) v. C.U.P.E., Local 543, 2012 CarswellOnt 9271 (Ont. Arb. Bd.). Published by Canadian HR Reporter, a Thomson Reuters business 2013 CELT

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