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LS-384E
BILL S-6: PUBLIC
SERVICE
WHISTLEBLOWING ACT
Prepared by:
David Johansen
Law and Government Division
5 February 2001
Revised 10 April 2001
LEGISLATIVE HISTORY
OF BILL S-6
HOUSE
OF COMMONS
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SENATE
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Bill
Stage |
Date |
Bill
Stage |
Date |
First
Reading: |
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First
Reading: |
31 January
2001
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Second
Reading: |
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Second
Reading: |
31 January
2001
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Committee
Report: |
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Committee
Report: |
28 March
2001
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Report
Stage: |
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Report
Stage: |
29 March
2001
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Third
Reading: |
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Third
Reading: |
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Royal Assent:
Statutes of Canada
N.B. Any substantive changes in this Legislative
Summary which have been made since the preceding issue are indicated
in bold print.
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TABLE
OF CONTENTS
BACKGROUND
A. Introduction
B. Current
Law on Whistleblowing in Canada
DESCRIPTION
AND ANALYSIS
A. Purpose
of the Bill
B. Interpretation
C. Public
Interest Commissioner
D. Notice
of Wrongful Act or Dismissal
E. Investigation
and Report
F. Prohibitions
G. Enforcement
H. Employee
Recourse
I.
Review
J.
Consequential Amendment
COMMENTARY
BILL S-6: PUBLIC
SERVICE
WHISTLEBLOWING ACT
BACKGROUND
A. Introduction
On 31 January
2001, a Private Senators Public bill, Bill S-6, the Public Service
Whistleblowing Act, was introduced in the Senate by the Hon. Noel Kinsella.(1)
The bill received second reading on the same date and was referred to
the Standing Senate Committee on National Finance. The bill would establish
a mechanism for dealing with the reporting of wrongdoing in the federal
Public Service. Although federally to date there have been no government
bills on the subject, a number of Private Members bills have been
introduced in the House of Commons.
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Bill C-293,
an Act to amend the Canadian Human Rights Act, the Canada Labour Code
and the Public Service Employment Act (whistleblowing) (3rd Session,
34th Parliament) was introduced in the House of Commons
by Ms. Joy Langan on 24 September 1991. It was later debated
at second reading and dropped from the Order Paper.
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A virtually
identical Private Members bill, Bill C-248, was introduced in
the House by Mr. Pierre de Savoye on 11 May 1994 (1st Session, 35th
Parliament). This bill also was subsequently debated at second reading
and dropped from the Order Paper.
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A later
and different Private Members bill on the subject was introduced
in the House by Mr. de Savoye on 19 June 1996; this bill,
Bill C-318, Whistle Blowers Protection Act (2nd Session,
35th Parliament) died with the dissolution of Parliament,
having received only first reading.
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Bill C-499,
a similar Private Members bill with some additional provisions,
was introduced in the House by Mr. Pat Martin on 23 April 1999
(1st Session, 36th Parliament) but did not go
beyond first reading. It was subsequently re-introduced as Bill C-239
in the House by Mr. Martin on 18 October 1999 (2nd Session,
36th Parliament) but died on the Order Paper with
the dissolution of Parliament. It was later re-introduced
as Bill C-206 in the House by Mr. Martin on 2 February 2001 (1st Session,
37th Parliament).
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Another
Private Members bill, Bill C-508, Whistle Blower Human Rights
Act, was introduced in the House by Mr. Gurmant Grewal on 17 October
2000 (2nd Session, 36th Parliament).
It died on the Order Paper with the dissolution of Parliament.
It was subsequently re-introduced as Bill C-201 in the House
by Mr. Grewal on 1 February 2001 (1st Session, 37th
Parliament).
As a background
to discussion of Bill S-6, the following section of the paper describes
the current law on whistleblowing in Canada.
B. Current
Law on Whistleblowing in Canada
In Canada, as
in certain other jurisdictions, most notably the United States, a number
of statutes particularly those covering environmental or occupational
health and safety matters protect employees within their jurisdiction
against retaliation for having exercised certain rights conferred by the
statutes. One such provision at the federal level in Canada is section
16 of the new Canadian Environmental Protection Act, 1999, which
provides for protection against employment reprisals for employees who,
in good faith, give designated officials information relating to offences
under the Act.
Governments
in Canada, however, at both the federal and provincial levels, have thus
far generally declined to enact broader whistleblower protection legislation
such as exists in certain other countries. In the United States, for example,
legislation at the federal level covers federal public-sector employees,
while legislation in some States protects public-sector workers and in
some other States protects both public- and private-sector workers.
It would appear that the only such general legislation in force in Canada
is section 28 of New Brunswicks Employment Standards Act,
which applies to employers in both the private and public sectors. In
general, this Act provides protection against employment reprisals for
employees who make complaints against their employers for the alleged
violation of any provincial or federal legislation.
In Ontario,
section 58(6) of the Public Service and Labour Relations Statute Law
Amendment Act, 1993, which received Royal Assent on 14 December 1993,
added a new Part IV (sections 28.11-28.43), entitled Whistleblowers
Protection, to the Public Service Act, to givebroad protection
for public-sector whistleblowers in that province. According to section
28.43 of the Public Service Act, however, Part IV is to come into
force on a day to be named by proclamation of the Lieutenant Governor.
This has not occurred because after the legislation was enacted, the New Democratic
Party government was replaced by a Progressive Conservative government,
now in its second mandate, whose agenda does not include proclamation
into force of Part IV.
In Canada, therefore,
whistleblowers in both the public and private sectors are forced to rely
chiefly on the protection offered by the common law. As noted in the Ontario
Law Reform Commissions Report on Political Activity, Public Comment
and Disclosure by Crown Employees (1986), under the common law an
employee owes his or her employer the general duties of loyalty, good
faith and, in appropriate circumstances, confidentiality.
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Loyalty
embraces the obligation to: perform assigned work diligently and skillfully;
refrain from any sort of deception related to the employment contract;
avoid any relationships, remunerative or otherwise, that might give
rise to an interest inconsistent with that of the employer; and conduct
oneself at all times so as not to be a discredit to ones employer.
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Confidentiality
may give an employee a duty to keep certain information confidential
until released from that duty by the employer. This duty may arise
by contract, or it may be imposed by equity whenever the employer
entrusts an employee with confidential information on
the understanding that it is not to be disclosed without authorization.
A general duty of confidentiality may arise by virtue of a particular
relationship between the employer and the employee.
When an employee
breaches these duties and reveals a confidence or some information, believing
that to do so is in the public interest, the employer routinely takes
disciplinary action, which may include dismissal. In the face of such
punishment, some employees have sought protection from the courts or,
if they are governed by a collective agreement, through a grievance procedure.
When the wrongdoing
has been serious and the publics interest in disclosure is clear,
the courts have permitted a very limited public interest defence
in these cases. They have emphasized the need for the employee to use
internal remedies first, to be sure of the facts, and to exercise good
judgement in his or her actions. Arbitrators have applied similar criteria.
In general, it may be said that employees currently have only a narrow
range of protection and may seriously jeopardize their careers by breaching
their duties to their employers.
For several
years, the Professional Institute of the Public Service of Canada (PIPSC),
a national union representing approximately 36,000 professional and scientific
employees, has been calling upon the federal government to enact legislation
to protect federal public-sector employees from potential reprisals for
blowing the whistle. The Public Service Alliance of
Canada (PSAC) which represents more than 150,000 federal public
servants and employees of agencies, Crown corporations and the territories
has also recommended enactment of such legislation.
DESCRIPTION
AND ANALYSIS
A. Purpose
of the Bill
Bill S-6 would
be entitled the Public Service Whistleblowing Act (clause 1). Its purpose,
set out in clause 2, would be to:
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provide
a means for Public Service employees to make allegations of wrongful
acts or omissions in the workplace, in confidence, to an independent
Commissioner who would investigate them and seek to have the situation
dealt with and who would report to Parliament in respect of confirmed
problems that had not been dealt with; and
B.Interpretation
Clause 3 would
define a number of terms for purposes of the bill.
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Commissioner:
a commissioner of the Public Service Commission designated as the
Public Interest Commissioner under clause 4.
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Employee:
a person who was an employee within the meaning of the Public Service
Employment Act, i.e., a person appointed to the Public Service under
the authority of the Public Service Commission where Public
Service refers to the positions in or under any department or
other portion of the Public Service of Canada specified in Schedule
1 to the Public Service Staff Relations Act.
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Public
Service: the parts of the Public Service covered by the Public
Service Staff Relations Act.
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Law
in force in Canada: either a federal or provincial statute or
an instrument issued under the authority of such a statute.
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Minister:
a federal Cabinet Minister.
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Wrongful
act or omission: an act or omission that was: a) an offence
under any law in force in Canada; b) likely to cause a significant
waste of public money; c) likely to endanger public health or safety
or the environment; d) a significant breach of an established public
policy or directive in the written record of the Public Service; or
e) one of gross mismanagement or abuse of authority.
C. Public
Interest Commissioner
The federal
Cabinet would designate one of the commissioners of the Public Service
Commission to serve as Public Interest Commissioner for purposes of the
bill (clause 4(1)). The Public Interest Commissioners functions
would be deemed to be within the work of the Public Service Commission
for the purposes of the Public Service Employment Act (clause 4(2)),
and the powers granted to the Commissioner by the Public Service Employment
Act for the purposes of that Act could be exercised for purposes of
the bill (clause 4(3)).
Subject to clause
10, referred to below, the Commissioner, if he or she believed it was
in the public interest to do so, could make public any information that
came to his or her attention as a result of performing the Commissioners
duties or powers under the bill (clause 5(1)). The Commissioner,
or a person acting on the Commissioners behalf, could disclose information
that, in the Commissioners opinion, was necessary to conduct an
investigation under the bill or to establish grounds for the findings
or recommendations of any report made under the bill (clause 5(2)). As
well, the Commissioner, or a person acting on the Commissioners
behalf, could disclose information in the course of a prosecution for
an offence under clause 21 of the bill or section 132 of the Criminal
Code (perjury) for a statement made under the bill (clause 5(3)).
The Commissioner would also be empowered to disclose to the Attorney General
of Canada, or of any province, information relating to the commission
of an offence against any law in force in Canada of which the Commissioner
had uncovered evidence during the exercise of his or her duties or powers
under the bill (clause 5(4)).
The Commissioner,
or a person acting on the Commissioners behalf, would not be regarded
as a competent witness for any matter that came to his or her knowledge
in the performance of the Commissioners duties or powers under the
bill other than in a prosecution for an offence under clause 21 of the
bill or section 132 of the Criminal Code (perjury) for a statement
made under the bill (clause 6).
No criminal
or civil proceedings would be taken against the Commissioner, or a person
acting on the Commissioners behalf, for anything done, reported
or said in good faith in performing the Commissioners duties or
powers under the bill (clause 7(1)). For the purposes of any libel or
slander law, anything said, any information supplied, or any record or
thing produced in good faith and on the basis of reasonable belief in
the course of an investigation carried out by or on behalf of the Commissioner
under the bill would be privileged, as would be any report made in good
faith by the Commissioner under the bill and any fair and accurate account
of the report made in good faith for purposes of news reporting (clause
7(2)).
The Commissioner
would be required to promote ethical practices in the Public Service and
to foster a positive environment for giving notice of wrongdoing by disseminating
information about the bill and by such other means as he or she found
fit (clause 8).
D. Notice
of Wrongful Act or Dismissal
A Public Service
employee who believed that another Public Service employee had committed
or intended to commit a wrongful act or omission could file a written
notice of the allegation with the Commissioner and could request that
his or her own identity be kept confidential (clause 9(1)). The notice
would have to identify the employee making the allegation, the person
against whom the allegation was being made, and the grounds for the allegation
(clause 9(2)). Such notice given in good faith and on the basis of reasonable
belief would not be deemed to constitute a breach of any oath of office
or loyalty or secrecy taken by the employee and, subject to clause 9(4),
not to be a breach of duty (clause 9(3)). In giving notice under clause
9(1), no employee, unless prompted by reasonable concerns for public health
or safety, would be permitted to violate any law in force in Canada or
any rule of law protecting privileged communications between solicitor
and client (clause 9(4)). The Standing Senate Committee on National
Finance added clauses 9(5) and 9(6). According to clause 9(5),
an employee who made a request under clause 9(1) that his or her identity
be kept confidential could waive the request or any resulting right to
confidentiality at any time. Section 9(6) stipulates that where the Commissioner
was not prepared to give an assurance of confidentiality in response to
a request under clause 9(1), the Commissioner could reject and take
no further action on the notice.
Subject to any
requirement imposed on the Commissioner under the bill or any law in force
in Canada, the Commissioner would be required to keep confidential the
identity of the employee who had filed the notice of allegation and who
had been given the Commissioners assurance of such confidentiality
(clause 10).
Pursuant to
clause 9, the Commissioner would have to review a notice of allegation
and could ask the employee for further information and make such further
inquiries as were considered necessary (clause 11).
The Commissioner
would reject, and take no further action on, a notice of allegation where
he or she had made a preliminary determination that the notice: was trivial,
frivolous or vexatious; failed to allege or give adequate particulars
of a wrongful act or omission; breached clause 9(4); or had not been given
in good faith or on the basis of reasonable belief (clause 12(1)). The
Commissioner could determine that a notice: of allegation had not been
given in good faith if it contained a statement that the employee, at
the time of making it, had known to be false or misleading (clause 12(2)).
However, the Commissioner would not have to make such determination solely
because the allegation contained mistaken facts (clause 12(3)). The Commissioner
would be required to communicate his or her determination under clause
12(1) in writing, and on a timely basis, to the employee who had given
the notice (clause 12(4)). As well, where the Commissioner determined
under clause 12(1) that a notice had been given in breach of clause 9(4)
or without good faith and on the basis of reasonable belief, he or she
could so advise the person against whom the allegation was made and the
Minister responsible for the employee who had given the notice (clause
12(5)).
The Commissioner
would be required to accept a notice of allegation that he or she determined:
was not trivial, frivolous or vexatious; did allege and give adequate
particulars of a wrongful act or omission; did not breach clause 9(4);
and had been made in good faith and on the basis of reasonable belief
(clause 13(1)). In such a case, the Commissioner would also be required,
in writing and on a timely basis, to so advise the employee who had filed
the notice (clause 13(2)).
E. Investigation
and Report
The Commissioner
would investigate a notice of allegation accepted under clause 13(1)
and would have to prepare a written report of findings and recommendations
(clause 14(1)) except if satisfied that: the employee ought
to first exhaust other review procedures; the matter could more appropriately
be dealt with, initially or completely, through a procedure provided for
under another statute; or the length of time between the wrongful act
or omission and the date the notice had been filed was such that a report
would not serve a useful purpose (clause 14(2)). Where no written report
was required, the Commissioner, in writing and on a timely basis, would
have to so advise the employee who had filed the notice of allegation
(clause 14(3)). The Standing Senate Committee on National Finance added
a new clause to provide that information related to an investigation would
be confidential and could not be disclosed except in accordance with the
bill (clause 14(4)). Where the Commissioner produced a written report,
he or she would be required to provide, on a timely basis, a copy of this
to the Minister responsible for the employee against whom the allegation
was made (clause 14(5)).
After considering
such a report, a Minister would have to notify the Commissioner of what
action had or would be taken (clause 15 (2)). In the case of
proposed action, the Minister would be required to give such further responses
as seem[ed] appropriate to the Commissioner until such time
as the Minister advised that the matter had been dealt with (clause 15(3)).
If, in the Commissioners
opinion, it was in the public interest, he or she could prepare an emergency
report and require the President of the Treasury Board to have this submitted
to Parliament on the next day that either House sat (clause 16(1)). The
emergency report would have to describe the substance of a report made
to a Minister under clause 14(4) and the Ministers response or lack
of response under clause 15 (clause 16(2)).
The Public Service
Commission would be required to include in its annual report to Parliament
(made pursuant to section 47 of the Public Service Employment Act)
a statement of activity under this bill, prepared by the Public Interest
Commissioner and including the information spelled out in clause 17(1)
of the bill. The report could also include an analysis of the administration
and operation of the bill and any further recommendations of the Commission
(clause 17(2)).
F. Prohibitions
No person could
take any disciplinary action against a Public Service employee who, acting
in good faith and on the basis of reasonable belief: a) had disclosed
or stated an intention to disclose to the Public Interest Commissioner
that another Public Service employee had committed a wrongful act or omission;
b) had refused or stated an intention to refuse to commit an act or omission
that would contravene the bill; or c) had done or stated an intention
to do something required in order to comply with the bill (clause 19 (1)).
Neither would a person be permitted to take any disciplinary action against
an employee who he or she believed would do any of the above (clause 19(1)).
Disciplinary action would mean any action that might adversely
affect the employee or any term or condition of the employees employment;
it would include harassment, financial penalty, any action affecting seniority,
suspension or dismissal, denial of meaningful work, demotion, denial of
a benefit of employment, or an action that was otherwise disadvantageous
to the employee (clause 19(2)). A person who took disciplinary action
contrary to clause 19 within two years after an employee had given a notice
of allegation to the Commissioner under clause 9(1) would be presumed,
in the absence of a preponderance of evidence to the contrary, to have
done so because the employee had given the notice (clause 19(3)).
The Standing
Senate Committee on National Finance replaced clause 20(1) so as to provide
that, except as authorized by the bill or any other law in force in Canada,
no person could disclose to any other person the name of the employee
who had given a notice under clause 9(1) and who had requested confidentiality
under that clause, or any other information the disclosure of which would
reveal the employees identity, including the existence or nature
of a notice, without the employees consent. There
would be an exception where a notice had been given in breach of clause
9(4) or not in good faith and on the basis of reasonable belief (clause
20(2)).
G. Enforcement
A
person who contravened clause 9(4), 18, 19(1), or 20(1) of the bill would
be guilty of an offence and liable on summary conviction to a fine not
exceeding $10,000 (clause 21).
H. Employee
Recourse
An
employee against whom disciplinary action was taken contrary to clause 19
would be entitled to use every legal recourse available, including grievance
proceedings provided for under a federal statute or otherwise (clause
22(1)). An employee could seek such recourse regardless of whether criminal
proceedings based upon the same facts were or might be brought under clause
21 (clause 22 (2)). In all recourse proceedings referred to
in clause 22(1), an employee would be entitled to the benefit of the presumption
in clause 19(3) (clause 22(3)). Grievance proceedings pending on the coming
into force of the bill would be dealt with and disposed of as if the bill
had not been enacted (clause 22(4)).
I. Review
The Standing
Senate Committee on National Finance added clause 23 to provide for a
parliamentary review of the bill. On the expiration of three years after
its coming into force, the bill would stand referred to such committee
of the Senate, of the House of Commons or of both Houses of Parliament
as may be designated or established to review its administration and operation
(clause 23(1)). Within one year after beginning a review under clause
23(1) or within such further time as the Senate, the House of Commons
or both Houses of Parliament, as the case might be, authorized, the committee
would be required to submit a report on its review (clause 23(2)).
J. Consequential
Amendment
The Standing
Senate Committee on National Finance added clause 24 to the bill to provide
for a consequential amendment to Schedule II of the Access to Information
Act concerning a list of statutory prohibitions against disclosure
of information.
COMMENTARY
According
to a newspaper report,(2) a number
of Senators and M.P.s support Bill S-6.
In light of
the current very limited protection for whistleblowers at common law,
it is arguable that there is a strong need for legislative protection
at both the federal and provincial levels. At the federal level, Bill
S-6, as drafted, would apply to Public Service employees but would not
cover parliamentary employees, because these are not part of the federal
Public Service.
If Bill S-6
were enacted into law, Canada would be following the lead of a number
of other jurisdictions that already have legislation to protect public-sector
whistleblowers. The United States was one of the first jurisdictions to
enact such legislation. At the federal level, Congress enacted the Civil
Service Reform Act of 1978, which was subsequently amended by the
Whistleblower Protection Act of 1989. Many U.S. states have also
enacted specific whistleblower protection statutes, primarily for public-sector
employees, but in some cases for private-sector employees also.
An example of
whistleblower protection legislation in a Commonwealth jurisdiction came
into force in Britain on 2 July 1999 in the form of the Public Interest
Disclosure Act. The Act generally protects both public- and private-sector
workers who blow the whistle against being dismissed or penalized
by their employers as a result.
Australia is
another example of a Commonwealth jurisdiction that has legislation on
the subject. At the federal level, through provisions of the Public
Service Act 1999, public service employees who report breaches or
alleged breaches of the Australian Public Service Code of Conduct are
protected against victimization and discrimination. Regulations under
that Act set minimum requirements for the procedures that agency heads
must establish for the reporting and investigation of whistleblowing disclosures.
Several Australian states have also adopted legislation on the subject;
for example, South Australia has enacted the Whistleblowers Protection
Act 1993, and New South Wales has enacted the Protected Disclosures
Act 1994.
In New Zealand,
the Protected Disclosures Act 2000 came into force on 1 January
2001, extending protection to both public- and private-sector whistleblowers.
(1)
The bill is virtually identical to Bill S-13 which was introduced in the
Senate by the Hon. Noel Kinsella in the 2nd Session of the 36th Parliament
but died on the Order Paper with the dissolution of Parliament.
(2)
MPs like Senators Whistle-blowing bill, Ottawa Citizen,
3 February 2001.
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