D was the chair of a public body. D also benefitted from some of the programs which the public body regulates, funds, and oversees. Due to the unique nature of the public body, it could not function effectively without the experience and expertise of members like D. D asked the Commissioner for a determination about whether she could take part in making decisions about those programs in her capacity as chair.
The Commissioner determined that D risked contravening sections 3, 6 and 9 of the conflict of interest rules in Ontario Regulation 381/07. Although she might be allowed to act as both participant and decision-maker in some situations, each situation would need to be evaluated as it arose. D would need to recuse herself from participating in certain discussions or decisions relating to the programs in which she was also a participant. The Commissioner suggested that D consider two questions before taking part in the decision-making process about such programs:
- How much could she influence decisions about the program if she took part in the decision-making process?
- How likely is it that she would benefit from the decisions or from taking part in the decision-making process?
Decisions made by the board in relation to a single program participant, although infrequent, are influential in that they could set a precedent for agency operations which could benefit other recipients of that program. Therefore, there is a high risk of D contravening the conflict of interest rules should D participate in these types of discussions or decision-making.
The Commissioner cautioned that there was no clear line to show when D should not take part in making decisions about those programs. In each case D would have to consider the relationship between her actions and any potential benefit, and recuse herself accordingly.
O. Reg. 381/07, s. 3 & 9.