Report to/Rapport au :

Corporate Services and Economic Development Committee

Comité des services organisationnels et du développement économique

and Council/et au Conseil

8 August 2003/le 8 août 2003

Submitted by/Soumis par : Kent Kirkpatrick, General Manager/Directeur général, Corporate Services/Services généraux

and/et

David Bray, General Manager/Directeur général

Human Resources/Services des ressources humaines

Contacts/Personnes ressource : Sheelagh Taylor, Director, HR Governance and Leading Practices/ Directrice, Gouvernance et pratiques avant-gardistes en matière de RH

580-2424 (Ext. 25934) Sheelagh.Taylor@ottawa.ca

and/et

Pierre Pagé, City Clerk/Greffier municipal

Secretariat Services/ Services de secrétariat

580-2424 (Ext. 22408) Pierre.Page@ottawa.ca

Ref N°: ACS2003-CRS-SEC-0054

SUBJECT:	HIRING and employment of family members POLICY – Municipal Act, 2001 S. 270
OBJET :	POLITIQUE D’EMBAUCHE ET D’EMPLOI DES MEMBRES DE LA FAMILLE – ARTICLE 270 DE LA LOI DE 2001 SUR LES MUNICIPALITÉ

REPORT RECOMMENDATIONS

That the Corporate Services and Economic Development Committee recommend Council approve:

1. The Hiring and Employment of Family Members Policy found at Appendix “A”; and

2. That implementation of this policy shall take effect with the new term of City Council on December 1^st, 2003.

RECOMMANDATIONS DU RAPPORT

Que le Comité des services organisationnels et du développement économique recommande au Conseil municipal :

1. d’approuver la Politique d’embauche et d’emploi des membres de la famille dans l’annexe A;

2. d’approuver que la mise en œuvre de la politique entre en vigueur en même temps que le nouveau mandat du Conseil municipal, soit le 1^er décembre 2003.

BACKGROUND

Legislation

On January 1^st, 2003, the long awaited Municipal Act, 2001 came into force. The purpose of this report and the attached policy is to comply with Section 270 of that statute, which mandates the following requirement for all municipalities and local boards in Ontario:

270 (1) Before January 1, 2005, a municipality and a local board shall adopt policies with respect to the hiring of its employees, including policies with respect to:

(a) the hiring of relatives of a member of council or local board, as the case may be;

(b) the hiring of relatives of existing employees of the municipality or local board, as the case may be; and,

(c) any other prescribed matter.

(2) The Minister may prescribe matters for the purpose of Clause (1)(c) at the time within which policies must be adopted under Subsection (1) with respect to the prescribed matters.

The phrase “local board” is defined in Section 1 of the Municipal Act, 2001 to mean, “a municipal service board, transportation commission, public library board, board of health, police services board, planning board, or any other board, commission, committee, body or local authority established or exercising any power under any Act with respect to the affairs or purposes of one or more municipalities, excluding a school board and a conservation authority.” However, for the purposes of a hiring policy enacted pursuant to Section 270, reference must be had to the broader definition given to “local board” in Section 269 of the Act:

269 (1) In Sections 270 and 271, “local board” means:

(a) a local board as defined in Section 1, excluding a police services board and a hospital board,

(b) an area services board, a local services board, a local roads board and any other board, commission or local authority exercising any power with respect to municipal affairs or purposes in unorganized territory, excluding a school board, a hospital board and a conservation authority,

(c) a district social services administration board,

(d) a local housing corporation described in section 23 of the Social Housing Reform Act, 2000, and

(e) any other prescribed body performing a public function.

(2) The Minister may make regulations prescribing bodies which fall within the definition of “local boards” in subsection (1).

In the spring of 2003, the Member Services Committee directed staff to develop such a hiring policy as it would relate to all Members of City Council. As these preparations began, the Human Resources Department advised that a similar initiative was underway to review the existing policy for City staff. In order to avoid unnecessary duplication, a joint hiring policy, encompassing both City employees and elected officials, has been developed.

Review of Hiring/Nepotism Policies

The Secretariat Services Branch and the Human Resources Department conducted a benchmarking review of the current policies, or absence of policies, in other municipalities across Canada, as well as at the Provincial and the Federal levels. For a complete compilation of this review, reference should be had to Appendix “B”.

With respect to municipalities and local boards, there is little in the way of existing provincial legislation that provides assistance to local government bodies seeking to develop hiring policies that specifically address the issue of hiring family members. However, a regulation made under the Police Services Act and entitled, “Members of Police Services Boards – Code of Conduct”, does set out current behavioural expectations for all members of police services boards. Sections 11 and 12 of this particular regulation address the issue of employment for board members and their families in the following fashion:

11 (1) Board members shall not use their office to obtain employment with the Board or the police force for themselves, their family member or their same-sex partner.

(2) For the purpose of subsection (1),

“Family member” means the parent, spouse or child of the person, as those terms are defined in Section 1 of the Municipal Conflict of Interest Act.

12 A Board member who applies for employment with the police force, including employment on contract or on a fee for service, shall immediately resign from the Board.

It is likely that the enactment of this regulatory “code of conduct” may be the reason why police service boards were expressly removed from the definition of “local board” under Section 269 of the Act.

City of Ottawa Code of Conduct

In April 2002, an Employee Code of Conduct for all City staff was approved by the Senior Management Team and implemented through the Human Resources Department. The following extract from the Code discusses the concept of “nepotism” that was endorsed with respect to City employees:

Family / Personal Relationships (Nepotism)

As a major public sector employer responsible for providing a variety of programs and services to the Ottawa community, City employees must ensure that their personal lives and their official duties co-exist independent of each other.

One area of concern is with respect to "nepotism" or the appointment to a position or the receipt of an employment benefit based on one's kinship or family relatives. As in other areas of City business, there is an expectation, shared by the public and City staff alike, that all hiring, promotions, performance appraisals or discipline will be undertaken in an objective and impartial manner. In order to meet this expectation, the City prohibits employment situations where relatives would:

1. be supervised by, or subordinate to, one another,

2. be given preferential treatment in being recruited and/or selected for vacancies, or

3. be appointed to positions where job responsibilities would be incompatible with positions occupied by relatives.

Should these, or any other nepotism issues arise, employees are required to disclose the particulars to their manager for appropriate resolution.

A related concern surrounds the personal relationships between employees and friends that are in receipt of City services, especially those persons that may be seen to be vulnerable clients. The City currently prohibits any employee from giving "preferential treatment to relatives or friends, or to organizations in which relatives or friends have an interest, financial or otherwise".

Once again, the integrity of the City as an objective and impartial public service provider may be jeopardized when an employee's personal relationship with a client appears to be the reason that the person is in receipt of the City service or the program. These types of misperceptions can arise in a variety of scenarios, for example:

1. a People Services Case Coordinator dating a client who is in receipt of social assistance, or

2. a doctor, nurse or health care provider who, due to their close relationship with a client or resident in receipt of health care, have been listed as a beneficiary in the will of the client or resident.

Should any of these types of personal relationships arise, the employee involved is required to disclose this perceived conflict of interest in writing to their manager, who will then address the matter accordingly.

DISCUSSION

As a large public sector organization, the City of Ottawa has an obligation to maintain public confidence in the integrity of its administration. One means of furthering this goal is to adopt a policy that avoids favouritism or perceived favouritism based on familial relationships in its employment practices. These practices include, but are not limited to, the hiring, supervision, and remuneration of staff. That is not to suggest that relatives of City employees and elected officials should be disqualified from any and all employment with the municipality. Rather, maintaining the integrity of the City's employment practices requires only that related employees or candidates should not be actually or seemingly given preferential treatment by virtue of their family relationships. Such preferential treatment is commonly referred to as “nepotism”, which is more particularly described as favouritism shown to a member of one’s family through the bestowal of public office or patronage upon them, rather than on the basis of merit. Such a definition recognizes that the hiring of more than one member of the same family by the City does not, in itself, raise the specter of nepotism. However, the expectation of open and accountable processes in our public institutions is offended when a government employee uses (or appears to use) his or her position to give an unfair advantage in employment to a family member. Such was the case when it was recently reported that an internal audit revealed “widespread patronage perpetuated by federal bureaucrats” as it related to the selection of summer student jobs in the federal government.

The purpose of the attached policy is to ensure that employment decisions remain free from allegations of nepotism and to maintain public confidence in the integrity of the City's administration. In particular, this policy is intended to:

1. prevent a conflict of interest or the appearance of a conflict of interest that may arise through the hiring or employment of family members; and

2. prevent the exercise of any improper influence based on familial relationships, or the appearance of such influence, in the City’s employment practices.

One of the City's human resource objectives is to hire the best candidate available for each vacancy, while taking into consideration the legal requirements imposed by such things as collective agreements.

Hiring Policy Summary

The most prominent features of the proposed policy can be summarized as follows:

§ All employment-related matters, including hiring, promotions, performance appraisals and discipline shall be undertaken in an objective and impartial manner.

§ It is essential to ensure that employment-related decisions concerning existing or potential City employees are free from any real or perceived improper influence based on familial relationships.

§ The policy is intended to prevent a conflict of interest, or the appearance of such a conflict surrounding employment matters, and to prevent the exercise of any improper influence based on familial relationships, or the appearance of such influence surrounding employment practices.

§ The City prohibits employment situations where family members would:

1. be supervised by, or subordinate to, one another;

2. be given preferential treatment in being recruited and/or selected for vacancies; or

3. be appointed to positions where job responsibilities would be incompatible with positions occupied by family members.

§ Finally, various definitions, including the term “family member”, as well as corporate responsibilities are also outlined in the policy document.

Policy Implementation

In light of the fact that the Municipal Act, 2001 requires hiring policies for employees and members of council to be in effect before January 1, 2005, and with the municipal election occurring on November 10^th, it is appropriate to research, develop and approve the required hiring and employment of family members policy prior to the beginning of the next term of Council. As the employment contracts for the staff in the elected representatives’ offices all expire on November 30^th, 2003, this approach will enable all Members of Council to comply with the policy without affecting their current administrative complement. In addition, the three-month delay in enacting this policy will provide any affected employees with sufficient notice. Therefore, an implementation date of December 1^st, 2003, is being recommended for this policy.

Once Council has approved the policy, procedures relating to the administration of the policy will be developed.

CONSULTATION

Members of Council were asked to provide their input on the development of a hiring/nepotism policy for the City of Ottawa as it relates to elected officials and their office support staff. Comments were received from some Members of Council and taken into consideration.

The Legal Services Branch has reviewed this report and provided the necessary legal opinion with respect to the policy being proposed.

FINANCIAL IMPLICATIONS

There are no financial implications involved in the adoption of this report.

ATTACHMENTS

Appendix “A” – Hiring and Employment of Family Members Policy;

Appendix “B” – Policy Review - Other Municipalities, and the Provincial and Federal Governments; and

Appendix “C” – Legal Opinion

DISPOSITION

The Unions will be provided with a copy of the policy.

The City Clerk, or his designate, and the Member Services Committee are ultimately accountable for ensuring compliance with the principles described in this policy with respect to the offices of the City’s elected representatives.

The General Managers are accountable for ensuring compliance with the principles described in this policy with respect to City employees. Human Resources Consultants are the City’s technical experts and strategic advisors on all staffing matters. The Human Resource Business Partners Branch will work with managers and the City Clerk to resolve any problems with respect to this policy. The Human Resource Business Partners Branch will review and monitor the City’s employment practices to ensure consistency and compliance with the policy.

Upon receiving formal approval, the Human Resources Department will forward copies of this report and the Hiring and Employment of Family Members Policy to all of the City’s local boards for their information. Upon Council approval, the Corporate Policy Group will have the policy translated and posted on MOE.

APPENDIX A

Corporate Policy Politique de la Ville

Title Hiring and Employment of Family Members	Titre Embauche et emploi des membres de la famille
Delegated City Council Authority	Fondèé de pouvoir Conseil de la Ville
Effective Date 1 December 2003	Date d’entrée en vigueur Le 1 décembre 2003
Reference	Référence
Last Revision Date	Révisée le

Policy Statement	Énoncé
All employment-related matters, including hiring, promotions, performance appraisals and discipline shall be undertaken in an objective and impartial manner.	Translation to follow/à suivre
Purpose	Objet
The purpose of this policy is to ensure that employment-related decisions concerning existing or potential City employees are free from any real or perceived improper influence based on familial relationships and to maintain public confidence in the integrity of the City's hiring and employment practices. In particular, this policy is intended to:
· prevent a conflict of interest, or the appearance of such a conflict, that may arise through the hiring or employment of family members; and
· prevent the exercise of any improper influence based on familial relationships, or the appearance of such influence, in the City’s employment practices.
Application	CHAMP D’APPLICATION
This policy applies to all employees and elected officials.
policy description	description de la politique
One of the City's human resource objectives is to hire the best candidate available for each vacancy, while taking into consideration the legal requirements imposed by such things as collective agreements. While strong family relationships are to be encouraged, these should not form the basis of an employment decision within a large government organization. As a consequence, the City prohibits employment situations where family members would:
· be supervised by, or subordinate to, one another;
· be given preferential treatment in being recruited and/or selected for vacancies; or
· be appointed to positions where job responsibilities would be incompatible with positions occupied by family members.
While this policy is intended to apply solely to immediate family relationships (see definitions), employees and elected officials should be cognizant that broader familial ties and other close personal relationships may give rise to the same concerns surrounding real or perceived conflicts as those specifically addressed in this policy. As a result, employees and elected officials who may find themselves in such situations should be sensitive to these concerns and govern themselves in keeping with the spirit and intent of this policy.
Definitions		Définitions
Direct Reporting Relationship - a relationship in which an employee or elected official has authority to:
· approve or deny increments, overtime or negotiate salary level;
· conduct performance appraisals;
· administer discipline; or
· direct work assignments
with respect to an employee.
Family - for the purposes of this policy, family includes an employee’s child, parent or spouse. These terms are more specifically described below:
Child - child born within or outside marriage, and includes an adopted child, and a person who a parent has demonstrated a settled intention to treat as a child of his/her family.
Parent - a person who has demonstrated a settled intention to treat a child as a member of his/her family, whether or not that person is the natural parent of the child.
Spouse - a person,
o to whom the person is married, or
o with whom the person is living outside marriage in a conjugal relationship, if the two persons,
o have cohabited for at least one year,
o are together the parents of a child, or
o have together entered into a cohabitation agreement under section 53 of the Family Law Act.
Responsibilities		Responsabilités
General Managers/City Clerk		Directeur général
General Managers are accountable for ensuring compliance with this policy with respect to City employees. The City Clerk, or his designate, and the Member Services Committee are accountable for ensuring compliance with this policy with respect to the offices of the City’s elected representatives.

HR Business Partners Branch	Division des partenaires d’affaires des ressources humaines
Human Resources Consultants are the City’s technical experts and strategic advisors on all staffing matters. The HR Business Partners Branch will work with managers and the City Clerk, or his designate, to resolve any problems with respect to this policy.
Monitoring	Surveillance
The HR Business Partners Branch will review and monitor the City’s employment practices to ensure consistency and compliance with this policy. The City Clerk or designate will monitor the employment practices of elected officials to ensure policy compliance and will advise the Member Services Committee accordingly.
Contraventions	Sanctions
Failure on the part of an employee to comply with this policy may result in discipline up to and including dismissal. Contraventions by elected officials shall be referred to the Member Services Committee for resolution.
References	Renvois
Code of Conduct Collective Agreements Equity and Diversity policy Hiring and Employment of Family Members procedures for elected officials (pending) Hiring and Employment of Family Members procedures for City employees (pending) Recruitment and Staffing policy Terms and Conditions of Employment
Legislated & Administrative Authorities	Mesures législatives et règlements administratifs habilitants
Canadian Human Rights Act Employment Standards Act Municipal Act Municipal Conflict of Interest Act Ontario Human Rights Code Municipal Freedom of Information and Protection of Privacy Act (MFIPPA)
Key Word Search	Mots-clés
Conflict of Interest Hiring of Family Members Nepotism
Enquiries	Demandes de renseignements
All enquiries regarding this policy should be directed to your HR Consultant/City Clerk as appropriate. For interpretation of specific policy statements, contact:
Corporate Policy HR Governance & Leading Practices Human Resources Department City of Ottawa Tel: (613) 580-2400

APPENDIX B

Review of Employment Policies

Municipality	Comments
Former Metropolitan Toronto, East York	No policy for elected officials. Administrative policy for employees prohibits relatives in direct reporting relationships.
City of New Westminster	No policy for elected officials. Policy only applies to City staff.
Halifax	Code of Conduct pending. October 2002 Halifax Herald article “Mayor proposes city hall ethics code” * (Article does not specifically reference nepotism as an issue to be covered in the code.)
City of Vancouver	No policy for elected officials. Policy only applies to City staff.
Region of Peel	No policy for elected officials. Policy only applies to City staff.
City of Surrey	Policy exists through Code of Conduct and by-law; only applies to City staff. * (Document does not specifically speak to nepotism.)
City of Toronto	Policy approved in June 2000. * “Council adopt the following policy with respect to Council office support staff: no employment of relatives of Members of Council shall be permitted within Councillors’ offices and the Mayors’ Offices; relatives, for the purposes of this policy, shall be defined as: (i) spouse, including common-law and same-sex spouse; (ii) parent, including step-parent and legal guardian; (iii) child, including step-child; (iv) sibling; and (v) any person who lives with the employee on a permanent basis implementation of this policy shall take effect with the new term of City Council, on December 1, 2000”.

City of London	Approved Code of Conduct for Members of Council * (Document does not specifically address nepotism or the staffing of relatives.)
District of North Vancouver	Policy in existence. * “The District will not discriminate either in its hiring practices nor during the employment relationship due to an individual’s marital or family status in respect of a current employee(s) of the District. However, the District will not permit such individuals to be appointed, transferred, or promoted to positions which would give rise to an obvious conflict of interest, or the potential for such conflict.”
City of Vaughn	Council resolution prohibits members of Council, the Chief Administrative Officer and Deputy Chief Administrative Officer from employing immediate family members anywhere in the corporation (part-time recreation excepted)
Town of Newmarket	Administrative by-law states: The Town shall refrain from employing a member or members of the same immediate family in the same Town Department unless the consent of the respective (Council) Committee is obtained. Further, the Town shall refrain from employing a member or members of the immediate family of a member of Council unless the consent of the respective Committee is obtained.
Former Scarborough	Did not employ family members reporting to the members of Council.
Former Etobicoke	Did not employ family members reporting to the members of Council.
Former North York	Policy in existence. States “No immediate relative of a member of North York City Council may be hired by the City.”
Former York	Policy in existence. States “(i.e. persons related to another through blood or marriage) shall not be placed in the City’s corporate structure such that one comes under the day-to-day supervision of another, directly or indirectly.” This policy applied to all employment relationships including student hires.
City of Mississauga	An employment candidate who is a spouse, parent or child of a current employee within the same section as a vacant position, or of a current employee who is responsible for the supervision or management of that section will be considered ineligible for the position. “Spouse” includes the person with who the candidate is living in a spousal relationship. This policy also applies to members of Council.
Town of Markham	Administrative policy that applies to Councillors that prohibits relations from reporting to one another.
Town of Richmond Hill	Council resolution that prohibits relatives from working in the same functional group.
Region of Sudbury	Policy that prohibits the hiring of relatives in a direct reporting relationship. Relatives refer to immediate family. Policy also prohibits Councillors from sitting on a hiring committee if a relative is a candidate. Relative in this regard is expanded to include nephews, nieces and grandchildren.
Province of Ontario	References *: Guide to Members’ Allowances and Services; Part 3 Members’ Support Staff and Caucus Staff Autumn 2001 City of Toronto June 2000 report Members’ Integrity Act, 1994 Members are not permitted to hire and retain in employment employees who are in any of the following relationships to the member: (i) spouse, including common-law spouse, same sex spouse; (ii) parents; (iii) children; (iv) siblings; (v) grandparents; (vi) grandchildren; (vii) in-laws (mother, father, son, daughter, brother, sister); (viii) ward; and (ix) guardian.
Federal Government	Reference *: Conflict of Interest and Post-Employment Code for Public Office Holders, June 1994, and staffing policies. Ministers and Secretaries of State should not hire or contract with members of their immediate families, that is their spouses, parents, children and siblings. As well, they should not permit departments or agencies for which they are responsible, or to which they are assigned, to hire or contract with members of their immediate families. As well, they need to ensure that members of the immediate family of another Minister, Secretary of State or party colleague in Parliament are not to be hired by their department except by means of an “impartial administrative process” in which they play no role. They are, however, permitted to hire a member of a colleague’s immediate family for a position on their political staff. One of the more important provisions on preferences in the Code is the requirement that public office holders “shall not accord preferential treatment in relation to any official matter to family members or friends or to organizations in which they, family member or friends have an interest”. *

APPENDIX C

M E M O / N O T E D E S E R V I C E

To / Destinataire	Sheelagh Taylor, Director, HR Governance and Leading PracticesSheelagh Taylor, Director, HR Governance and Leading Practice	File/N° de fichier: File Number
From / Expéditeur	Jerry Bellomo, Director, Legal Services / City SolicitorJerry Bellomo, Director, Legal Services/City Solicitor
Subject / Objet	Hiring Policy – Municipal Act, 2001-Hiring Policy - Municipal Act, 2001-	Date: Date29 July 2003

The purpose of this legal opinion is to canvass some legal issues relevant to the preparation of a hiring policy for employees and Members of Council pursuant to section 270 of the Municipal Act, 2001.

(i) Human Rights Code

In developing a hiring policy, including one with respect to the hiring of family members, a municipality or a local board should ensure that its requirements are drafted in accordance with provincial or federal human rights legislation, as well as the Canadian Charter of Rights and Freedoms. For example, subsection 5(1) of the Ontario Human Rights Code provides as follows:

5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, same-sex partnership status, family status, or handicap.

At first glance, one might be tempted to conclude that a local government’s policy in accordance with section 270 could be contrary to the Human Rights Code, should it be found to constitute “discrimination” as a result of an employee’s or councillor’s marital or family status. However, this provision must be read in conjunction with subsection 24(1)(d) of the Code:

24(1) The right under section 5 to equal treatment with respect to employment is not infringed where,

*****

(c) An employer grants or withholds employment or advancement in employment to a person who is the spouse, same-sex partner, child or parent of the employer or an employee.

The above exemption would appear to protect an anti-nepotism policy in the face of a human rights challenge. However, it should be noted that the constitutionality of this provision is not without question, as noted later in the caselaw review.

An additional consideration is the fact that the City of Ottawa is not wholly within the provincial sphere: because some elements of the Transit Services branch (OC Transpo) fall within federal jurisdiction, the provisions of the Canadian Human Rights Act must also be considered.

Like the provincial statute, the federal Act prohibits discrimination in employment based on the same enumerated grounds. An express saving provision, as appears in subsection 24 of the Code, is unfortunately not set out in the Canadian Human Rights Act. Rather, a federally-regulated employer seeking to implement an anti-nepotism policy must satisfy the standard test for employment requirements having a discriminatory effect: the requirement must constitute a bona fide occupational qualification that cannot be accommodated in individual situations without causing undue hardship.

In addition, most Members of Council will be familiar with the restrictions found in the Municipal Conflict of Interest Act with respect to the direct, indirect and deemed pecuniary interests of Councillors. In a manner reflective of the Human Rights Code, a deemed pecuniary interest is defined in section 3 as follows:

3. For the purpose of this Act, the pecuniary interest, direct or indirect, of a parent, or the spouse, same-sex partner or any child of the member shall, if known to the member, be deemed to be also the pecuniary interest of the member.

In light of these legal parameters, it would seem prudent to include only an employee’s or councillor’s “spouse, child or parent” within the terms of a hiring policy under section 270 of the Municipal Act, 2001.

(ii) Caselaw

Whether the exclusion of nepotism policies from the ambit of the Human Rights Code may, itself, be unconstitutional is unclear, particularly given the judicial treatment the issue has recently received. To begin with, a number of lower courts and human rights tribunals have produced varying decisions with respect to the nepotism policies of local government employers.[1] Notwithstanding these decisions, the Supreme Court of Canada addressed this very matter in the 1988 decision, Brossard (Ville) v. Quebec (Commission des Droits de la Personne).[2]

In the Brossard case, a municipality refused to hire a young woman as a lifeguard in the summer because its anti-nepotism policy precluded the hiring of immediate family of existing staff. The applicant’s mother was employed full-time as a typist at the municipal police station. The Town argued that the policy was intended to avoid favouritism or any appearance thereof in its hiring practices. The applicant responded that the policy discriminated against her based on her “civil status”, in contravention of Quebec’s “Charter of Human Rights and Freedoms.”[3] In a unanimous decision, the Supreme Court of Canada rejected the Town’s position. In fact, in a concurring judgment, Madam Justice Wilson concluded that the Town’s broad anti-nepotism policy could not constitute a valid bona fide occupational qualification if other, “less drastic means” existed to accomplish the same objectives:

It seems to me that the hiring of relatives may well pose a threat or perceived as a threat to the integrity of the Town’s administration….The extent of the threat such a hiring practice poses is obviously a matter of degree and should be established by evidence. Were the hiring of relatives to become common practice, it could obviously constitute a serious threat. This being so, is it “reasonably necessary” in this case to ban the hiring of relatives entirely, or would it adequately serve the purpose if a watchful eye were kept on the situation and discretion exercised in order to keep the hiring of relatives (assuming their ability to do the job concerned) within reasonable proportions?

It seems to me that, having regard to the nature of the right which is violated by an anti-nepotism policy, i.e. the right under s. 10 not to be discriminated against, the adoption of a total ban is not “reasonably necessary” in order to avoid a threat to the integrity of the Town’s administration. The Town can avoid the threat by the less drastic means I have suggested.[4]

The decision in Brossard suggests that a nepotism policy that amounts to a total ban on hiring relatives will not escape judicial review.

Also of relevance is the June 10, 2003 decision of the Ontario Court of Appeal in Halpern et al. v. Attorney General of Canada et al., concerning a Charter challenge to the common law definition of marriage.[5] The Court of Appeal declared the traditional definition of marriage to be invalid and reformulated it to be, “the voluntary union for life of two persons to the exclusion of all others.”

(iii) Summary

So as not to offend either the Charter or human rights statutes, it is suggested that any anti-nepotism policy adopt a reasonably restrictive definition of “family”. A policy confined to children, spouses, and parents is one that is unlikely to run afoul of the law in this regard and would be consistent with the scope of the Municipal Conflict of Interest Act. Likewise, the definitions for the terms “parent” and “child” may be drawn from existing municipal legislation.

In the absence of a further appeal of the Halpern case or other similar judicial rulings,[6] and given the Federal Government’s recent delivery to the Supreme Court of its reformulated marriage legislation, it is suggested that a hiring policy under section 270 of the Municipal Act, 2001 seek to accommodate the current state of the law in this respect by providing for a neutral definition of “spouse”. This could be accomplished by adopting the current definition of spouse set out in the Municipal Act, 2001, modified in keeping with the Halpern ruling. The definition would thus read as follows:

Spouse - a person

to whom the person is married, or

with whom the person is living outside marriage in a conjugal relationship, if the two persons,

have cohabited for at least one year,

are together the parents of a child, or

have together entered into a cohabitation agreement under section 53 of the Family Law Act.

An anti-nepotism policy based on the foundation described above is one that would most minimally restrict the rights of employees and applicants, while also ensuring the integrity of the City’s hiring and employment practices and preserving public confidence in its administrative processes.

I trust the above is helpful.

Jerry Bellomo

JB/ro Jerry Bellomo

Author’s Initials

---

[1] See, for example, Bosi v. Michipisoten (Twp.) (1983), 4 C.H.R.R. D/1252 (Ont. Bd. of Inquiry), and Mark v. Porcupine General Hospital (1984), 6 C.H.R.R. D/2538 (Ont. Bd. of Inquiry).

[2] (1988) 53 D.L.R. (4^th) 609.

[3] R.S.Q. 1977, c. C-12, S.10.

[4] See Footnote 32 at p. 655; see also the most recent decision of the Supreme Court of Canada in B. v. Ontario (Human Rights Commission), [2002] S.C.J. No. 67.

[5] [2003] O.J. No. 2268.

[6] Similar decisions were reached in Quebec, Hendricks v. Quebec (Attorney General), [2002] J.Q. No. 3816, and British Columbia, EGALE Canada Inc. v. British Columbia (Attorney General), [2003] B.C.J. No. 994.