A whistleblower is an employee who alerts authorities, media, or the public to alleged wrongdoing, typically in their workplace. Wrongdoing can include criminal activities such as fraud but also other activities which may be inappropriate but not necessarily illegal. Some examples of these include mismanagement and harassment, the latter of which is generally prohibited in some way. In some cases, the wrongdoing can have severe implications regarding public health and safety.
In our experience, whistleblowers are almost universally motivated by the best interests of the public or a specific group – they rarely focus purely on their individual circumstances and needs. Despite this, they are often mischaracterized by employers as being dishonest or otherwise acting inappropriately. This is a typical response to whistleblowing activity, which is unacceptable. Indeed, whistleblowers frequently face harassment and retribution. While employees remain entitled to protection from wrongful discipline, dismissal, and other negative impacts, employers do not always live up to their legal obligations. Moreover, often whistleblowers are the subject of retaliation from fellow employees or even the public.
What You Need To Know As A Whistleblower
Whistleblower protection laws are complex, meaning that many such individuals are not always aware of their rights and responsibilities before and after they start being vocal. Indeed, in all cases, a whistleblower should obtain legal advice and guidance before blowing said whistle in any way, as there are many ways in which they can protect themselves at the outset and throughout the process, maximizing success and minimizing negative reactions.
Whistleblower Protection At Raven Law
Our firm provides strategic advice and advocacy to whistleblower employees in both the public and private sector at all stages of the process. These include before, during, and after blowing the whistle. We provide informed guidance on the nature and timing of permissible disclosure, the legal frameworks that exist to protect whistleblowers, and the steps that must be taken before going public. We can also represent those facing retribution from whistleblowing before courts and tribunals. In fact, many of the leading cases concerning the rights and obligations of whistleblowers, particularly under the Federal Public Servants Disclosure Protection Act, have been argued by lawyers in our firm.
Finally, David Yazbeck, one of our lawyers, is directly involved in some of the leading Canadian advocacy groups for whistleblowers; namely, the Centre for Free Expression Whistleblower Initiative out of Ryerson University and the Whistleblowing Canada Research Society. As a result, we are not only on the cutting edge of information regarding whistleblower laws and practice, but also assist in influencing laws and policies in this area.
FREQUENTLY ASKED QUESTIONS
While there is not one single piece of legislation that protects all Canadian whistleblowers, employees in the federal public sector who expose wrongdoing in their organizations enjoy protection against reprisals under the Public Servants Disclosure Protection Act (PSDPA). The PSDPA applies to all employees in federal departments and agencies, most Crown corporations, and the RCMP. However, it excludes the Canadian Armed Forces, the Canadian Security Intelligence Service, and the Communications Security Establishment Canada.
The PSDPA establishes secure and confidential channels for employees in the federal public sector to report wrongdoing within their organization. Further, it allows employees who experience reprisals for whistleblowing to seek redress in the form of compensation or disciplinary action against guilty parties. Similar protections are built into the Public Service of Ontario Act, which apply to provincial public sector employees. While these protections do exist, their effectiveness varies depending on the circumstances. In order to maximize chances of success, it is usually imperative to obtain proper legal advice.
Finally, there are numerous other individual pieces of legislation enabling further whistleblower protection, some of which are discussed in more detail below. Two examples we have worked with are the Ontario Securities Commission Whistleblower Program and protections for whistleblowers in the Nuclear Safety and Control Act.
The PSDPA provides for disclosures of wrongdoing to the Office of the Public Sector Integrity Commissioner of Canada. In addition, wrongdoing can be disclosed internally through processes established by a department under the PSDPA.
While there is no time limit for alleging such wrongdoing, it is imperative that it be done at the earliest opportunity. Moreover, it is extremely important that employees receive proper advice prior to disclosing wrongdoing. Under the Act, wrongdoing is defined, in section 8 of the PSDPA as:
- (a) a contravention of any Act of Parliament or of the legislature of a province, or of any regulations made under any such Act, other than a contravention of section 19 of this Act;
- (b) a misuse of public funds or a public asset;
- (c) a gross mismanagement in the public sector;
- (d) an act or omission that creates a substantial and specific danger to the life, health or safety of persons, or to the environment, other than a danger that is inherent in the performance of the duties or functions of a public servant;
- (e) a serious breach of a code of conduct established under section 5 or 6; and
- (f) knowingly directing or counselling a person to commit a wrongdoing set out in any of paragraphs (a) to (e).
If employees believe that such wrongdoing has taken place, they have the right to ask that the Public Sector Integrity Commissioner investigate it. In some cases, they may also disclose such wrongdoing internally. In all cases, however, the authorities are limited to making findings and providing recommendations.
Whether or not wrongdoing meets the definition in the PSDPA, or is worth pursuing by way of a disclosure internally or to the Public Sector Integrity Commissioner, is a serious question. It requires an assessment of complex factors and considerations for any individual. We recommend seeking out informed legal advice from an experienced lawyer, if possible.
In addition to allowing for the disclosure of wrongdoing, the PSDPA provides for protection against reprisal by way of filing a disclosure of wrongdoing. These are challenging and often complicated cases. However, if you believe that you have been reprised against for reporting wrongdoing in your organization, you have 60 days to file a complaint with the Office of the Public Sector Integrity Commissioner of Canada. The Commissioner will then decide within 15 days as to whether your complaint will be investigated. If the investigation leads to a finding that there has been a reprisal, the complaint will be referred to the Public Servants Disclosure Protection Tribunal, which has the power to order a remedy.
Under the PSDPA, a reprisal includes any of the following measures taken against a public servant because they have made a protected disclosure:
- (a) a disciplinary measure;
- (b) the demotion of the public servant;
- (c) the termination of employment of the public servant;
- (d) any measure that adversely affects the employment or working conditions of the public servant; and
- (e) a threat to take any of the measures referred to above.
This is a very generalized list of potential reprisal measures. Whether or not you have been subject to reprisal in any particular case often requires legal analysis and advice.
RavenLaw has extensive experience in representing reprisal claimants under the PSDPA, both before the Public Servants Disclosure Protection Tribunal and in challenging tribunal decisions on judicial review. Given some of the technical aspects of this process, ideally, a whistleblower should obtain advice prior to filing a reprisal complaint and throughout the process. The PSDPA does provide for limited funding for legal assistance. RavenLaw has extensive experience in obtaining such funding and would be able to do so on an employee’s behalf.
There is a patchwork of legal protections that exist in other pieces of legislation for employees outside the public sector that cover disclosures made in certain circumstances. These include:
- Section 425.1 of the Criminal Code, which prohibits employers from retaliating or threatening to take action against employees when they provide information to law enforcement officials
- The Ontario Securities Commission Whistleblower program, which has the power to award monetary payments to persons who report violations under Ontario’s Securities Act and Commodities Futures Act. The Securities Act also provides for protections against reprisal and an independent right to claim for relief from reprisal in a court.
- The Nuclear Safety and Control Act, which makes it an offence to take disciplinary action against a person who provides information to an official of the Canadian Nuclear Safety Commission.
Furthermore, there is also protection against reprisal against whistleblowers under employment, workplace health and safety and human rights legislation. Insofar as whistleblowers can establish that their employer contravened this legislation, they may be protected against terminations, demotions, or other discipline that stems from an employee’s attempt to bring the contravention to light.
Finally, like all non-unionized employees, whistleblowers are protected at common law from wrongful dismissal. Whether or not an employee is entitled to claim for wrongful dismissal following the disclosure of wrongdoing is a sensitive matter, one that has to be considered on a factual basis. Employees who are unionized will also likely have the right to grieve against reprisal action, although the existence of a grievance procedure complicates the remedies and resources available to individuals.
What to do if you wish to disclose wrongdoing or believe you are the victim of reprisal for disclosing wrongdoing?
While it is possible for any individual to disclose wrongdoing or pursue a reprisal complaint on their own, the system established under the PSDPA is complex, with a number of legal hurdles and potential issues. We highly recommend that any individual looking to disclose wrongdoing or file a reprisal complaint consult with legal counsel before engaging the process and during the process. Our extensive expertise can be of great assistance in that regard.