Federal Court of Appeal Clarifies Interpretation of Whistleblower Law

In a recent judgment from the Federal Court of Appeal, the Court has provided some needed clarification regarding the interpretation of the Public Servants Disclosure Protection Act. Sylvie Therrien was a whistleblower who went public with information regarding the use of quotas in order to reduce employment insurance costs. Eventually, Ms. Therrien was suspended, had her reliability status revoked, and was terminated. Ms. Therrien filed grievances against those three actions which proceeded before an adjudicator from the Public Service Labour Relations and Employment Board. None of the grievances alleged reprisal, however.

Ms. Therrien filed a complaint with the Public Sector Integrity Commissioner alleging that each of these actions also represented reprisal for her public disclosure. Upon receipt of the complaint, the Commissioner’s Office refused to assess it on the basis that it was being dealt with as part of the grievance process.

In its January 17, 2017 decision, the Court of Appeal set aside the Commissioner’s decision. The Court made two important rulings. First, the Court said that the Commissioner could not refuse to deal with a complaint simply because the actions in the complaint are referred to in some other proceeding. Rather, the Commissioner has an obligation to determine whether that other proceeding would actually deal with the reprisal allegations on their merits.

Second, the Commissioner’s Office had advised Ms. Therrien’s counsel that it would be assessing the admissibility of the complaint on the basis of one section of the Act but then decided not to deal with the complaint on the basis of another section of the Act. The Court found that this was procedurally unfair.

Although the matter has been sent back to the Commissioner’s Office to be dealt with, the Commissioner has decided to hold the complaint in abeyance pending the outcome of Ms. Therrien’s adjudication proceedings.

Ms. Therrien is represented by David Yazbeck of RavenLaw, in both the reprisal complaint and the grievances.