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This document was
prepared by the staff of the Parliamentary Research Branch to provide Canadian
Parliamentarians with plain language background and analysis of proposed government
legislation. Legislative summaries are not government documents. They have no official
legal status and do not constitute legal advice or opinion. Please note, the Legislative
Summary describes the bill as of the date shown at the beginning of the document. For the
latest published version of the bill, please consult the parliamentary internet site at www.parl.gc.ca.
LS-354E
BILL S-13: PUBLIC SERVICE WHISTLEBLOWING ACT
Prepared by :
David Johansen
Law and Government Division
18 January 2000
LEGISLATIVE HISTORY OF BILL S-13
HOUSE OF COMMONS |
SENATE |
Bill Stage |
Date |
Bill Stage |
Date |
First Reading: |
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First Reading: |
2 December 1999 |
Second Reading: |
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Second Reading: |
22 February 2000 |
Committee Report: |
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Committee Report: |
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Report Stage: |
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Report Stage: |
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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
COMMENTARY
BILL S-13: PUBLIC SERVICE WHISTLEBLOWING ACT
BACKGROUND
A.
Introduction
On 2 December 1999, a Private Members bill, Bill S-13, the Public
Service Whistleblowing Act, was introduced in the Senate by the Hon. Noel Kinsella. 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. For example, 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. 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. 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 C-318, Whistle
Blowers Protection Act (2nd Session, 35th Parliament) died with the
dissolution of Parliament, having received only first reading. 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 in the current session (2nd Session, 36th
Parliament).
As a background to discussion of Bill S-13, 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
(S.C. 1999, c. 33), assented to on 14 September 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, and which in general
provides protection against employment reprisals for employees who make complaints against
their employers with respect to 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 give broad 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. After the legislation was enacted, however, 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. "Loyalty" embraces the obligation to perform
assigned work diligently and skillfully, to refrain from any sort of deception related to
the employment contract, to avoid any relationships, remunerative or otherwise, that might
give rise to an interest inconsistent with that of the employer, and to conduct oneself at
all times so as not to be a discredit to ones employer. "Good faith"
requires an employee to perform assigned tasks according to the best interests of his or
her employer. Finally, "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 judgment in his or her
actions. Arbitrators have applied similar criteria. In general, it may be said that
employees have at present only a narrow range of protection and may seriously jeopardize
their careers by breaching their duties to their employers.
The Professional Institute of the Public Service of Canada (PIPSC), a
national union representing some 36,000 professional and scientific employees, has for
some years 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), representing over 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-13 would be entitled the Public Service Whistleblowing Act
(clause 1). Its purpose, set out in clause 2, would be:
to educate Public Service employees on ethical practices in the workplace and to promote
the observance of those practices;
to 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
to protect Public Service employees from retaliation for having made or for proposing to
make, in good faith and on the basis of reasonable belief, allegations of wrongdoing in
the workplace.
B. Interpretation
Clause 3 would define a number of terms for purposes of the bill. The
"Commissioner" would mean a commissioner of the Public Service Commission
designated as the Public Interest Commissioner under clause 4, while an
"employee" would mean 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. Similarly, under
the bill, the "Public Service" would mean the parts of the Public Service
covered by the Public Service Staff Relations Act. A "law in force in
Canada" would mean either a federal or provincial statute or an instrument issued
under the authority of such a statute. "Minister" would mean a federal Cabinet
Minister. A "wrongful act or omission" would mean 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) in respect of 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 in respect of 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) in respect of 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)).
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, so to
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)). Where the
Commissioner produced a written report, however, 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(4)).
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)).
Except as authorized by the bill or any other law in force in Canada,
clause 20(1) would prohibit disclosure of the existence or nature of a notice of
allegation given by a Public Service employee to the Commissioner under clause 9(1) in
such a way as to identify the employee who had made it. 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)).
COMMENTARY
It would appear that, thus far, there has been no commentary on Bill
S-13 in the press.
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-13, as drafted, would
apply to Public Service employees but would not cover parliamentary employees, since these
are not part of the federal Public Service.
If Bill S-13 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.
A very recent 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 Regulations, public service employees who report breaches or alleged breaches
of the Australian Public Service Code of Conduct are protected against victimization and
discrimination. The regulations also set minimum requirements for the procedures that
agency heads must establish for the reporting and investigation of whistleblowing
disclosures. Several States in Australia 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.
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