Thank you for this opportunity to present our office's experience under the Public Servants Disclosure Protection Act.
Joining me at the table is Andrew Hayes, senior legal counsel for the office.
Under section 14 of the act, the Auditor General has the power to receive, review, and investigate disclosures about wrongdoing on the part of the Office of the Public Sector Integrity Commissioner or PSIC officials.
To date we have received 27 disclosures of alleged wrongdoing by PSIC officials that have resulted in three completed investigations, one investigation that is still under way, and one performance audit.
In conducting our work, we've noted some limitations that exist within the act. For example, we cannot investigate complaints of reprisals that come from PSIC employees and, in the course of an investigation, we are not allowed to seek information from outside the public sector.
These limitations proved to be a problem in 2010, when we began investigating three disclosures received by our office under the act. This caused us to convert our investigation into a performance audit, to be able to fully examine allegations of reprisal and obtain all the required information.
In our view, this illustrates why it’s important that PSIC employees have the same avenues of recourse as other public servants. We see two options if Parliament wishes to address the limitations we've noted.
The first option is to expand our mandate. We’ve noted that the Public Sector Integrity Commissioner of Canada has recommended that consideration be given to amending section 14 of the act. This would allow the Auditor General to investigate disclosures coming from the public concerning PSIC officials and reprisal complaints made by PSIC employees, with all the related powers and duties of the commissioner.
Our experience has been that PSDPA investigations are often complex and time-consuming. An expansion of our mandate would likely increase the number of disclosures, with considerable impact on our resources. To take on this work, we would need additional funding or we would have to reduce the number of performance audits that we can do.
The second option is to consider an alternate model, such as that which exists for the Information Commissioner and the Privacy Commissioner. These agents have the ability to appoint an independent investigator to deal with complaints regarding their obligations under the Access to Information Act and the Privacy Act.
The committee should be aware that we did not pursue many of the complaints that we received because they were disputes of decisions reached by the commissioner. The correct approach for an individual to dispute a decision is to file an application for judicial review with the Federal Court, which we believe is appropriate.
Ultimately, it’s up to Parliament to decide how it wishes to address the limitations we've noted under the Public Servants Disclosure Protection Act. We will, of course, comply with whatever Parliament decides.
Mr. Chair, this concludes my opening statement. We would be pleased to answer any questions the committee may have.
Thank you, Mr. Chair, for the opportunity to appear before you today.
My colleagues and I at ACFO have had the opportunity to counsel hundreds of public servants who came forward and wanted to do the right thing. In the vast majority of these cases, those public servants decide not to do anything.
I've heard the committee ask questions about why the numbers are so low. I believe it's not because public servants don't want to come forward and disclose wrongdoing, and not because there is no wrongdoing that exists; it is because these public servants' singular fear is that they will lose their livelihood as a result of doing the right thing.
With that in mind, ACFO submits that in order to have an effective system, we need a single system managed by an independent office that has the power to protect the livelihood of those who come forward.
I'll talk a little about my background. I am ACFO's general counsel and director of labour relations. As such, for every case file that comes into my organization, I either talk to the member or talk to the labour relations adviser, who talks to the member. Until very recently, ACFO discouraged its members from coming forward. We've always discouraged them from going to the departments, because we don't feel they are protected there. Until about two years ago, we discouraged them from going to PSIC, because we did not feel they would be protected there. We think that's changing, and their trajectory is in the right direction now.
I've had the opportunity to represent the Trade Union Advisory Committee to the OECD, representing 62 million workers globally, and 20 million workers at Public Services International before the ILO, working on whistle-blowing and anti-corruption measures. I've also served on the Public Sector Integrity Commissioner's advisory board, and I'm the chair of Canadians for Tax Fairness, an independent, not-for-profit NGO. In that role, I've referred a number of private sector whistle-blowers to law enforcement, to PSIC, and to the media.
I can tell you that in all these—internationally, private sector, and public sector—there is a fear that blowing the whistle will ruin your life. I think you've heard the evidence already that this does occur.
We have five recommendations we think will help in this regard. I'll indicate where the models are, because these recommendations are tried and tested in other jurisdictions.
The first is, I think, unique to ACFO in terms of what the committee is going to hear. We believe that a public servant who blows the whistle should have a staffing priority. The staffing priority system is well established in the public service. It's typically used for public servants who come back from leave. Let's say they've relocated with their spouse, or they've had military service; when they come back, if they're qualified, they are at the front of the queue for jobs.
I think you've heard other witnesses suggest that pay protection is in order for whistle-blowers, and I agree with that, but I think that before you protect pay, you can give the members an option to use the staffing priority process to find another job outside the context in which they've blown the whistle so that they can continue to contribute. Most of them do want to continue to contribute and not sit at home while a lengthy process takes place. If you look at the U.S. system, the South Korean system, and the whistle-blower protection in South Africa—the provisions are detailed in our brief—you see that there is pay protection, and in some cases staffing priority rights, in those jurisdictions.
Second, we believe—and I know you've heard this, so I won't belabour the point—that a reverse onus is absolutely essential for cases of reprisal. This exists most recently in Quebec. I'm not even sure the legislation is published, but I know through colleagues in Quebec that the Quebec legislation will have reverse onus. It exists in the U.S. and in South Africa.
Third, to echo Mr. Ferguson's point, we believe that there should be an expansion of the jurisdiction so that investigations can follow the trail into the private sector. Too often we hear of investigations stopped because a senior public servant has retired, or the chain of waste goes into the private sector. This needs to change. You need only look to New Zealand or Australia for examples of legislation covering both the public and the private sectors.
Fourth is an incentive system. This is something we're working on internationally quite a bit. We believe that in certain cases whistle-blowers should be rewarded if their information results in the recovery of revenue. If you look at the U.S. system, it's firmly in place there. Actually, it has been in place since the days of Lincoln. In Ontario the securities commission has just put in a program like this, and Korea has a system as well.
The fear that people raise with an incentive-based system is that it will result in a lot of false claims, but the evidence does not bear that out. Much more is recovered. I have spoken to people in the U.S. in particular who work on these files directly. They report that false claims are not an issue and that they have recovered billions of dollars as a result of an incentive-based system.
Strangely enough, it is firmly based in English common law, a principle called qui tam, which has just gone out of practice. It's time to bring it back.
Finally, we believe that there should be a consolidation of the integrity function. The disclosure process in the departments does not work. My members will not use it. They believe and I believe that departmental systems are designed to contain problems, not to deal with them. These systems serve to cause waste to fester, and it comes out when it's much worse. It comes out often in the media, or by other means.
Independence is essential. You can only do that through an independent office, and we had one already.
I have just a few other points.
There is something I would like to read to you. It's a little long, but I think it's worth it. Then I'll close.
It's an impact statement from a member we supported. She was involved in the PSIC case. There was a decision. It was the chair of the Canadian Human Rights Tribunal.
It's going to sound familiar, because it details gross mismanagement in terms of harassment, as you have seen in some of the more recent cases. I would urge you to read those cases and think about why PSIC is dealing with harassment when it seems so obvious when you read these cases.
The answer, similarly, is that departmental systems for harassment do not work. They're designed—again—to contain harassment, and they're not independent. This is why you're seeing harassment come up through the PSIC process and result in decisions that seem fairly obvious.
Realize that this harassment is often a product of corruption and waste in government and that harassment is a way to suppress people from speaking out, to suppress people from blowing the whistle.
Please bear with me for two minutes.
This is from Doreen Dyet. She has never disclosed her name before. She's a member. She was anonymous in the report, but she wanted you to know her name today.
|| As a former Director of Financial Services of the Canadian Human Rights Tribunal I would like to convey my feelings to the Standing Committee about my experiences in dealing with the wrongdoing of the CHRT Chairperson....
|| As a manager, staff frequently complained to me about abuse...and her inappropriate conduct. Prior to her appointment, I had received a Chairperson's Award for work I had done in implementing harassment and recourse policies and procedures at the CHRT....
|| I was involved in a total of four difficult and grueling processes before [PSIC ruled in my favour].
She filed a harassment complaint. She participated in an investigation with the PCO. She filed multiple grievances over multiple years and had no recourse. Doreen Dyet only got a result by going to PSIC, and for that, ACFO supports PSIC and the current commissioner. We also support all 16 recommendations save one, which is that we believe that the legal fees should be at the discretion of the PSIC commissioner, not TBS, in terms of offering whistle-blowers more.
Given the time, I won't read through the whole statement, but I will provide it, translated, to the committee afterwards.
I will say that Doreen Dyet was successful. She won her whistle-blowing complaint. She lost her marriage. She lost her health. She lost her job after 34 years of service.
With the whistle-blowing system that we now have in place, even if you win, you lose. Ultimately, that is why, to 95% of members who call me up, I say, “You shouldn't go forward. If you're worried about feeding your family, if you're worried about your job, if you're worried about your health, it's not in your interest to come forward.”
The changes that I and some of the other witnesses have recommended are important to making a change happen so that people aren't afraid of losing their livelihoods.
Mr. Chair, I think it's simply a matter of our saying that there are some limitations. There are limitations concerning people who are bringing forward complaints of reprisals against PSIC and there are limitations in our ability to get access to information.
We think those two things need to be fixed. They don't necessarily need to be fixed so that they are done by us. The mandate could be removed from us and done by some sort of independent investigator as well.
Really, I'm not suggesting one or the other. I think the work that we have done under the investigations we have done well, but we are limited in what we can do. Anything that expanded our mandate would, as I've said in my opening statement, have an impact upon our resources.
If people from outside the public service were able to bring complaints about PSIC's work to us or if we were able to get reprisal complaints from PSIC employees, it doesn't necessarily mean that we would end up doing more investigations. It would mean, however, that we would have to assess more complaints, and all of that takes time.
Similarly, though, if Parliament decided to put in place some sort of independent process, there would be a cost to that as well.
I'm thus not advocating one or the other. I would be happy to work within whichever framework Parliament decides they want us to work in. I think, though, there would need to be a recognition that if we were asked to do more, there would be an impact. Right now the only way we could get the resources to do this would be to reduce the performance audits that we present to Parliament.
It's a little bit more nuanced than I put it.
When someone calls in and says, “I have this problem”, they don't know if it's an integrity issue or it's wrongdoing; they just know they're getting issues in the workplace. We put before them all their options: grievances, human rights complaints, PSIC. At one point in time, we weren't telling them about PSIC, because we just weren't using the process. We had lost faith in it. However, we put all the options to them, and they usually ask us about the repercussions of these options. They're always worried, even if they're filing a grievance about reprisal. I don't tell them they shouldn't file; I tell the member the most likely outcome if they file, and they make the decision not to.
Only a small part of changing that culture is about training. It's more about making sure that they can see examples out there of people who've blown the whistle and haven't suffered dire consequences because of it. They can look at that model.
In my union right now, we use the example of the one member who came forward at the human rights tribunal and was successful. I still tell them that it took a terrible toll on the person, but they were successful.
The change point you're asking about occurs because those people are particularly brave and they say, “Damn the consequences; it's not right.”
Often my members have designations. Perhaps they're accountants and they're being asked to do things that are against their professional ethics and against their personal ethics. When they go forward, they're going forward at their own peril, and they know it, generally. They're just particularly brave people.
I don't blame the people who don't go forward. I think protections need to be in place to encourage more people to go forward. That's the difference between someone who chooses to go forward and someone who doesn't. It's just someone who's particularly brave, in my mind.
From the outside, when we look at whistle-blowers, we all say, “Oh, that's a great thing they did”, but it's not like that on the ground. I call it the Serpico effect. I don't know if you know the New York City police officer who disclosed the corruption in the NYPD and got a bullet in the head for his trouble.
Even good people tend to go along with the harassment and the isolation of whistle-blowers because they didn't say anything. They want to believe that they didn't do anything wrong and that the whistle-blower must be crazy. There's a tendency for people closer to the whistle-blower to isolate them. That's just a reality.
The Serpico reference was not hyperbole. I have a close colleague in Quebec with the SPGQ, and he had a member who committed suicide with a memory stick in their pocket about corruption in the construction industry in Montreal. The stress of whether to blow the whistle or not, and the repercussions on their life, caused them to take their own life. This is serious business for some people.
There are a lot of people out there who have decided that when they have a person telling them to do something unprofessional or unethical—maybe the person sends them an email ordering them to do it—they're just going to cover themselves, and that's the way it gets resolved. That's not right.
I do. Thank you very much.
Members of the committee, thank you for inviting PIPSC for your review of the Public Servants Disclosure Protection Act. I feel like I've been involved in whistle-blowing legislation in one form or another since I was a baby steward and the institute's general counsel was a new employment relations officer at the institute, so we've been in this for a long time.
This is Isabelle Roy, who is general counsel for the Professional Institute of the Public Service of Canada. She will help to answer some of your questions today as well.
Canadians rely on public services every day to make their lives safer, healthier, and more prosperous. Our members are the ones who provide those services.
PIPSC is Canada's largest union of professionals, working predominantly for the federal government. We're proud of our service to Canadians and we're committed to their well-being. Whistle-blowing fits that commitment. It is ultimately a testament to the integrity of public service professionals.
Let me reiterate that whistle-blowing is a service to the public. It only happens in the rarest of circumstances, when public service professionals have tried every other avenue for resolving a significant concern, only to have their concerns dismissed by higher-level authorities.
When public service professionals take the action of blowing the whistle on a wrongdoing, they are doing us all a service, and they're doing so in keeping with their deep commitment to protecting and promoting the public good. Sadly, whistle-blowing has also meant sacrificing your career for the sake of public interest, and it shouldn't be that way.
Think about PIPSC members such as Dr. Shiv Chopra, Dr. Margaret Haydon, and Dr. Gérard Lambert, who blew the whistle over concerns about the veterinary drug approval process within Health Canada. They knew the drugs given to cattle could have made each and every one of us sick. Think about it. Every time you drink milk, eat cheese, or enjoy a steak, you should be thanking these public service professionals, who put their careers on the line to save you from potential illness.
What did they get? They got 15 years in litigation, and their cases have yet to be completely resolved.
The work of this committee is to ensure that whistle-blowing is recognized and appreciated as a service, not punished as a betrayal. It's your work to ensure that we favour whistle-blowing, not put up insurmountable barriers in the way of whistle-blowers. That was the promise of the Public Servants Disclosure Protection Act, but sadly, it's failed to live up to that promise. Let's fix that.
Before I propose three specific ideas from PIPSC, I want to affirm our support for one recommendation that you've heard from almost every witness before this committee, and that's to reverse the onus of reprisal in law. Fear of reprisal remains one of the main obstacles to whistle-blowing, and the current law fails to address that concern.
Reprisal against whistle-blowers who disclose wrongdoing is often difficult to prove. As a result, it's rare that one could find a smoking gun that would assist in proving that the reprisals have taken place. The simple solution to this problem is to require a reverse onus, which means that an allegation of reprisal is assumed to be true unless the employer can rebut it.
In addition, we recommend to the committee to take the following three steps.
The first is to fix the investigation process under the Public Sector Integrity Commissioner. Our experience in representing members demonstrates that the commissioner's investigation processes are often unfair, lacking in thoroughness, and insensitive to whistle-blowers.
Think about the case of our member El-Helou. Two years after filing a reprisal complaint, the commissioner came back with a decision to dismiss two of the three allegations, but the Federal Court set aside the commissioner's decision on the basis of failure to investigate crucial evidence, and also a failure to make the parties aware of the substance of the evidence the commissioner had gathered.
Following the Federal Court decision, the commissioner decided to re-investigate the allegation it had already determined had merit to go to the tribunal. Now, four years after the initial complaints were filed, the commissioner came back to say that none of the allegations warranted referral to the tribunal. What kind of message does this send to public service professionals who see wrongdoing and want to blow the whistle on it?
In our experience, the deficiencies in the Public Sector Integrity Commissioner's process require unnecessary litigation and result in unacceptable delays. They have to be fixed.
Our second recommendation is to eliminate the Public Sector Integrity Commissioner's gatekeeper role and replace it with a direct access system. The commissioner performs a gatekeeper role in respect of reprisal complaints. This role means that only the commissioner can decide which complaints are referred to the tribunal. This gatekeeper role places enormous discretion in the commissioner as to how reprisal complaints are dealt with.
As a result, very few reprisal complaints have been referred to the tribunal. The committee should eliminate the gatekeeper role and replace it with a direct access system that would allow reprisal victims to go directly to the tribunal to get relief.
Our third recommendation is to close the outsourcing accountability loophole. As you may know, PIPSC is a leading voice in fighting against the government's overreliance on outsourcing. Our research has shown that outsourcing is costing the federal government money, jobs, morale, accountability, and productivity.
Federal overreliance on outsourcing is creating a shadow public service to which the rules, regulations, and guidelines for accountability simply do not apply, and that's true for the act you're studying. The shadow public service is a massive loophole when it comes to the the Public Servants Disclosure Protection Act.
First, the act has no jurisdiction over private companies that receive government contracts. If the whistle is blown on a wrongdoing and an investigation leads the commissioner outside the public service, the investigator's hands are tied.
Second, contract workers have absolutely no protection under the act. If a contract worker decides to blow the whistle on a wrongdoing committed by their company or the government authorities who awarded that contract, they have no recourse under this legislation. Worse still, these contractors do not even have the protection and the resources of a union like PIPSC to help them navigate life as a whistle-blower.
One has to wonder if the whistle would have been blown on Phoenix or the email transformation initiative before their implementation. If the right protections had existed in law, would these things have played out the way they have?
The government has to end its overreliance on outsourcing. I recommend that you study the issue of outsourcing in full, but in the context of your current study of whistle-blowing, I urge you to pay close attention to the accountability loophole created by outsourcing. It's a loophole that must be closed.
Finally, I want to point out that the important work of this committee in reviewing the Public Servants Disclosure Protection Act should be augmented with another accountability measure that is sorely lacking.
Years ago, the Gomery commission called for a code of conduct for ministers and their political staff to ensure political staff don't meddle in the work of professional public servants. As you know, one of the larger groups represented by PIPSC is the federal scientists, who over the past decade have felt the chill of government muzzling. I'm proud to say that our scientists work hard to enshrine the right to speak into their collective agreements, and now they're working with their U.S. counterparts as they fight to protect their scientific integrity against the Trump administration.
The same threat of muzzling and political meddling still exists for all other public service professionals. It's not only disrespectful and demoralizing to have ministers and their political staff undermine the professional work of public service experts; it's also an immense waste of public knowledge and expertise. Let's bring in a code of conduct that ensures muzzling and meddling in the work of public service professionals never happens again.
: Merci, monsieur le président.
Good morning, and thank you for inviting PSAC to talk with you about the PSDPA.
With me is Patricia Harewood. She is the legal officer with the collective bargaining branch at PSAC.
The act should provide guidance, support, and protection for public sector workers who wish to speak out against wrongdoing. It's been failing them from the start.
It's undisputed that workers are reluctant to come forward. When they do, they often experience great sacrifice in their personal and work lives. It sends a powerful message to others to remain silent. Perceived freedom to speak up without fear of reprisal is described as a basic need in the Canadian Standards Association's 2016 publication on whistle-blowing systems and best practices. CSA concluded:
|| There is a strong relationship between the creation of a psychologically safe and healthy workplace and the creation of a whistleblowing system...given that both involve establishing and reinforcing a culture that gives employees “voice”, as well as confidence that concerns will be handled in a just manner.
Overall, a speak-up culture is not being applied in Canada, nor is there an independent process or effective protections for whistle-blowers.
The act has been extensively criticized for setting too many conditions on whistle-blowers and for protecting wrongdoers. It reins in whistle-blowers by restricting them to making disclosures to internal mechanisms; they can only disclose a wrongdoing directly to the Public Sector Integrity Commissioner, PSIC, in limited circumstances. A disclosure to the commissioner can be made if the individual has reasonable grounds to believe that it would not be appropriate to disclose internally. That effectively shuts many cases down.
The act also does not ensure the right to disclose all illegality and misconduct. The definition of “wrongdoing” selectively omits large areas, such as Treasury Board policies, breaches of which spawned the Gomery inquiry. Public disclosures are only permitted when there is not sufficient time to make a protected disclosure and when there are reasonable grounds to believe that the issue constitutes a serious offence under legislation. If public servants go to the media with a disclosure of wrongdoing that doesn't meet one of these exceptional requirements and they suffer reprisals as a result, the commissioner cannot accept their complaint of reprisal because technically they never made a disclosure under the act.
In addition, the commissioner can refuse to deal with any disclosure if the commissioner believes that the whistle-blower is not acting in good faith, or it is not in the public interest, or for any other valid reason. Between the year 2007, when the commissioner's office was established, and 2015, the office received 623 disclosures of wrongdoing; the commission's own statistics show that only 10, or 1.6%, were considered as founded under the act. The office also received 207 complaints of reprisals. Only 10, or less than 5%, were referred to a tribunal.
These low rates can be explained in part by shortcomings in the act. They also suggest that the Integrity Commissioner's office has not proven itself as trusted and independent. These failures matter because they help foster an unhealthy and ineffective culture of silence in the public service.
The act also has other significant failings. It does not redress all forms of harassment, particularly passive retaliation. Instead, it takes a narrow and short-term view of what may constitute harassment. In reality, whistle-blowers are typically harassed over long periods by every method imaginable. The 60-day time limit to complain about a reprisal is totally unrealistic, because those who file complaints are often experiencing significant stress as a result of the harassment.
Legal assistance provided to whistle-blowers is completely inadequate, with a limit set at $1,500, or $3,000 in exceptional circumstances. That doesn't even get you a deposit for a lawyer. One former commissioner did not approve any whistle-blower funds for legal assistance. This effectively helped protect alleged wrongdoers who would be represented by a government legal team.
If reprisal complaints are referred, the disclosure tribunal has no authority to award costs to complainants. These are often long-drawn-out cases that can last for years. For example, the recent Sylvie Therrien case started in 2013; it's still ongoing. The investigation of reprisal complaints by the Integrity Commissioner must be fair and transparent. The Therrien case shows that the commission has been plagued with issues in investigations that lack basic procedural fairness.
If there is a claim of reprisal, the onus should be on the respondent to prove that their actions against the whistle-blower do not constitute reprisal. This was a recommendation of the Gomery inquiry in 2006, but was never implemented. However, article 31 of Quebec's new whistle-blowing legislation includes such a reverse onus.
The disclosure act carefully blocks all possible avenues to access any details of the commissioner's investigation, putting them beyond the reach of access to information laws not just for a few years, but forever. In addition, tribunal hearings may be conducted in secret and need not be filed at the Federal Court. When whistle-blower cases are settled by the Canadian government, there is a draconian gag order attached that prevents whistle-blowers from ever even discussing the wrongdoing.
There are critical exclusions from the disclosure act. Security agencies are excluded from the act, and employees cannot approach the commission to report wrongdoing or seek protection from reprisal.
The law does not address private sector misconduct at all, and private sector information cannot be used. Therefore, government misconduct involving the private sector cannot be investigated. Public-private partnerships are on the increase, and as contractors perform an increasing proportion of the government's work, this is a gaping omission in the law. The recent Phoenix fiasco is sufficient evidence that the act must be extended to cover potential misconduct when the private sector and government are involved.
Adequate corrective measures are also missing from the act. An important purpose of whistle-blower legislation is to investigate and correct wrongdoing. While the act gives the commissioner power to investigate individual disclosures, it does not provide the tools necessary to finish the job properly. Overall, the act does not ensure corrective action to end wrongdoing. The commissioner has no power to order corrective action, sanction the wrongdoers, initiate criminal proceedings, or apply for injunctions to halt ongoing misconduct. The commissioner can only report the found wrongdoing to the departmental head and then to Parliament and hope that something happens as a result. When it comes to reprisals, the commissioner can apply to a tribunal, which will determine whether or not reprisals occurred. However, the tribunal has limited remedies to offer complainants. How can wrongdoing be deterred or honest employees protected when there is no reliable mechanism to sanction proven wrongdoers or those who engage in reprisals?
In summary, here are our key concerns about the act.
The investigative process must be fair and much more transparent. The onus should be on the respondent in complaints of reprisals. The 60-day time limit to report retaliation is much too short. The legal assistance available to whistle-blowers is insufficient. Details of the commission's investigations are blocked forever from access to information requests. The provisions for sanctions and corrective action are inadequate. Information about misconduct involving the private sector cannot be used, and former public service workers are untouchable in the sense that when they leave the public service, the commissioner cannot investigate allegations of their misconduct.
In short, significant changes must be made to the act if it is to actually protect public sector workers.
I'd like to thank you for your time today. Ms. Harewood and I are ready to answer any questions you may have.
And it's about time, I think, Mr. Chairman.
I've listened to colleagues here and I've read some of the testimony on the website from other things. You have someone here who's been a whistle-blower and was subject to reprisal, and, in my case and my two other colleagues' cases, termination.
Thank you, Mr. Chair, and members of the committee for inviting me today. When I was asked to participate in this, I was excited to do it, but it dug up a lot of bad memories too.
I will start by saying that if a public servant approached me today and asked me, “Should I blow the whistle, Stan, based on your experience?”, I would tell them, “If you can afford to be out of work for maybe up to a year and a half with no benefits, go through a lot of stress on co-workers and family, then go ahead and do it, but otherwise don't.”
I want to address certain sections of the act, how it affected my experience, how it affected my colleagues' experience too, and how maybe we could make things better.
With regard to a bit about me, I graduated from the University of Windsor with a business degree. I worked as an immigration officer at the Blue Water Bridge for two years, and for the next 18 years I was a proud member of the Ontario Provincial Police. In 2003, Blue Water Bridge Canada, a small crown corporation, approached me and hired me as their vice-president of operations, where I remained until my termination in March 2013.
In February 2012, I was a witness in a protected disclosure involving the CEO of the crown corporation. The investigation resulted in findings of wrongdoing by the CEO, who retired effective March 15, 2013. I and two others who participated in the disclosure were terminated two business days later, as they deemed our positions redundant. In effect, four days after the CEO resigned after being found guilty of wrongdoing, the board dismissed the next two senior officers at the crown corporation—the vice-president and the CFO—and one other manager. The following day, we filed a reprisal complaint.
Now before I go further, we didn't do this haphazardly. It festered for a long time. We went on the website and read the whole thing about how we're protected and how we shouldn't worry about it, that it will be dealt in an informal, expeditious manner, and that reinstatement was a possible remedy.
I'd like to address a couple of sections of the act here and tell you how it really went. Sections 19.4 and 19.5 gave the commissioner 15 days to decide whether or not to deal with the complaint when we filed our reprisal. As has been mentioned before, when the commissioner decides to refer it for an investigation, there is immediate protection to what I call “the reprisers”—I've called them other things—but it provides nothing for the whistle-blower. There is no protection at all. They're protected against any disciplinary action, while we're out of pay and have no benefits while the reprisers carry on as usual.
I know there has been talk about reverse onus. I strongly agree with that. It seems that it's very weighted to the other side, and not to ours. I felt as if I was guilty until proven innocent. They get the benefit of the doubt, and we don't.
I recommend that once the commissioner decides to investigate, the complainant—especially if the reprisal is a termination—should be reinstated, reassigned, or put on leave with full pay and benefits until the end of the investigation, especially in a small crown corporation. We were about 50 or 60 people, so reassignment was not really possible there, as opposed to being in Ottawa, where you have a large organization. That's one recommendation that I have.
Subsection 21(1) states that the proceedings before the tribunal are to be conducted “as informally and expeditiously” as possible. Regarding the informal part, as I told you before, I was a police officer for 18 years and I was used to testifying in a court-like setting. Well, the logistics for this tribunal that we went through.... It was held in a small hotel room that was very crowded. There were about two or three lawyers on the reprisers side, and we had the commission lawyers and our own lawyer. It was very intimidating, even for me a bit, but imagine somebody who's never been to court before, never been under that stress. They have to get up there in the stand; there's a justice there, and then they're getting hammered with cross-examination.
It's very intimidating for those people, and it's by no means informal. I think that has to change, or at least be taken into consideration, when the case goes to a tribunal.
Subsection 21.7(1) is about the remedies. At the beginning of our tribunal hearing, I recall that there was some discussion about the remedies listed. On the other side there are paragraphs (a) to (f), identifying different remedies, such as reinstatement, this or that, but they were arguing that it could be just one of those things, not cumulative. It could be this, or this. It was and/or. Therefore, I'm suggesting that in that subsection, and/or” be written in between each paragraph, so that argument is out of the way for the justice in the case when looking at remedies. It can be this, plus this, plus this.
Paragraph (f) talks about $10,000 for pain and suffering. Sorry, but that is woefully inadequate, especially when it comes to a reprisal where there's termination. Reprisals, as you know, can constitute anything from a smaller thing to the worst, and that's from zero dollars to a $10,000 range. Absolutely, that doesn't compensate someone for the pain and suffering of going through this whole process.
I'll leave it up to you to fix an amount, but $10,000 is way too small.
Subsection 20.4(1) reads, “If, after receipt of the report, the Commissioner is of the opinion that an application...is warranted...[he] may apply to the Tribunal” to determine “whether or not a reprisal was taken...and, if the Tribunal determines that a reprisal was taken...” they can make “(a) an order respecting a remedy in favour of the complainant; or (b) an order respecting a remedy in favour of the complainant and... disciplinary action against” the reprisers.
I don't understand why paragraph (a) is even in there. After a little research, my understanding is that most of the time paragraph (a) has been applied, which means there's no penalty for the reprisers, since that can't be considered. A reprisal is a reprisal is a reprisal. If you did it and it was found in the court, then there should be a penalties section applied, not the “or” in here, so that it's either you get the remedy or you get the remedy and there's discipline.
It doesn't make any sense. It's like having a section of the Criminal Code for theft with the option of no penalty. There has got to be some penalty there, some deterrent. If you want more people to go through this process, there has got to be something. It seems like it's slanted to the other side, and you know what I mean by the other side.
There was talk about legal fees. Personally, mine were $30,000, so there has to be more compensation for legal fees.
Lastly, I just want to say that when this was all going on back in 2013, the staff did the best job they could with what they had, and what they had was the act. I've heard things here that the staff is motivated, there's a new commissioner, and everything is great, but unless you change some of the legislation, they're only as good as what they work with.
Those are my comments. Thanks.
I want to thank the witnesses for being here this morning. I'll ask my questions in French. If you need earphones to listen to the simultaneous interpretation, don't hesitate to use them.
It's troubling. It has been a big morning. That's what I can say after listening to the previous witnesses and to Mr. Korosec describe a personal experience. Thank you for meeting with us.
At the same time, I remember the presentations given last week, when we met with the Commissioner and with RCMP and Public Services and Procurement Canada representatives. We asked the witnesses questions about the many whistleblower cases. We have the table and we've seen statistics in this regard.
My view is as follows. I wrote “the code of silence.” I heard it earlier. I've heard a bit about this type of thing. However, when we ask people, we're told that it wasn't what was said. People tell us that we must refer to the collective agreements, because there are different ways to raise and solve issues.
I'll go back to the basic principle, which is respect for anonymity when a disclosure is made. This obviously seems to be a big issue. Afterward, there's talk about the accountability of people who are singled out or investigated.
How do you see the issue of respect for anonymity in Canada in relation to the services here and in relation to other countries, where this doesn't seem to be the case and where anonymity appears to be less of a problem?
Ms. Daviau and Mr. Rousseau, do you have anything to say on the matter?