Thank you, Mr. Chair, for inviting me to appear once more to discuss the review of the PSDPA, as we refer to it. It's a pleasure for me to be here this morning and to continue the discussion we began last month.
I am pleased to have with me my general counsel Brian Radford, who I am going to invite to take an active part in the discussions today. Mr. Radford has a long history with the legislation, including being part of its initial government-wide implementation planning before the actual creation of our office. I'm sure he'll be able to provide useful background and context as our discussions continue.
I am very pleased to have tabled, on February 14, 16 concrete proposals for positive and progressive change to enhance Canada's federal public service whistleblowing regime.
Since my last appearance before this committee, Mr. Chair, my office has tabled two case reports on founded cases of wrongdoing, and we have published a research and discussion paper on the fear of reprisal, authored by Dr. Craig Dowden, copies of which I understand committee members received earlier this week. This is the first such paper produced by my office—and I believe in the country—and it is an important contribution to the ongoing discussion of whistle-blowing in Canada. I spoke about the need for cultural change when I was here last month, and I note that several witnesses before the committee have since raised that same important issue. This research paper addresses this as well, including making recommendations that will support the ongoing process of that change.
As I told you when I was last here, one of my goals as Commissioner is to normalize whistleblowing. I believe that the activities we conducted last month represent significant progress toward achieving that goal.
I have followed the committee's deliberations since my appearance last month, and I am heartened by the level of focused interest on the part of so many witnesses to make real and significant progress in advancing the whistle-blowing regime. While I don't necessarily agree with the view that the regime is a failure and the law must be redrafted from the start, I can say that I enthusiastically support what I believe to be a collective will to support effective whistle-blowing, recognizing that there's not one off-the-shelf model that exists and works for every country or regime. The goals of this evolutionary process are shared by all witnesses, from what I can tell, including me.
I note the depth and focus of discussion about the process for dealing with reprisals and the fact that it is daunting and even discouraging when someone has to first wait for an investigation to be completed by my office, only then to have to go through a formal tribunal hearing—a process not unlike a trial—in order to get a final ruling. I look forward to what I hope is a fulsome discussion on these issues, including the issue of more direct access to the tribunal, which is something I'd like to say I support.
This brings me to a very important point, and one that I did not have the opportunity to fully address when I was here last month, and that is our authority to conciliate and settle reprisal cases. To date, we have successfully conciliated nine cases, resulting in settlements that the complainant participated in and willingly agreed to. In five other cases, the Tribunal used mediation to settle the matter, or the parties reached an agreement themselves during the course of the Tribunal process.
My first job in my legal career was as a private practice litigator, and my last job at the Department of Justice was heading up the alternative dispute resolution program. I think you can see where my interests and beliefs lie in respect of providing people with access to justice and to meaningful involvement in the resolution of their own disputes, and in avoiding, when possible, unnecessary litigation and the high costs associated with it.
Yes, I'd say every case my office conciliates means one less case for the tribunal, one less public decision on a reprisal complaint, and one less precedent. These are all important, but it also means that one more reprisal victim is able to get restitution for what they went through; save time, money, and emotional turmoil; and move forward with their lives. This isn't a failure, in my view, of the reprisal protection regime that I administer under the act. I should also point out that every conciliated complaint is reviewed by my office and signed off by me to ensure that no one is coerced into a settlement or otherwise makes an uninformed or involuntary decision to settle.
I was initially going to end my remarks here this morning. However, following testimony that I heard earlier this week—and that you heard earlier this week—I felt it was important for me to clarify some key points from my perspective in the aim of ensuring a clearer understanding of some important issues that the act addresses, which in turn, I hope, can contextualize some of the legislative changes I put forward last month.
I will start by saying that the act is complex, and it is drafted in a way that makes it difficult to navigate and understand, and this is again from my personal experience.
I would like to touch on three issues that I think are relevant, given the discussions before this committee to date, and which concern the extent and the effectiveness of the protections and redress mechanisms for whistleblowers and other parties involved in our activities.
First, the act does not prohibit and, indeed, it expressly provides in section 51.2 for access to the Federal Court for any party involved in the disclosure or reprisal to have a decision of my office reviewed. Like any other administrative decision-making body, these decisions are subject to judicial review and under the Federal Courts Act, the powers of the court are considerable. Furthermore, nothing in the act precludes a public servant from exercising any other recourse that they may otherwise have in relation to the situation.
Second, the issue of contractors with the federal government is specifically addressed in the act. It is prohibited to terminate a contract or withhold payment because a contractor has come forward with a disclosure. Further, the contractor's disclosure cannot be taken into account in the awarding of future contracts. To do so would constitute a criminal offence.
Related to this is the fact that, if someone in the private sector provides information about a wrongdoing to my office, their employer commits a criminal offence if they reprise against them. These people also have access to the courts for any other appropriate remedy.
Third, section 51.1 of the act provides chief executives with the power to temporarily assign other duties, inside or outside the department they currently work in, to a public servant who is involved in a disclosure or a reprisal complaint with the consent of the whistle-blower or the complainant.
The committee may wish to review and strengthen these elements. I would be pleased to be part of that discussion, but I do want to address what I believe is a potential misunderstanding that the act is silent on these very important matters.
I would also like to take a brief opportunity to offer a technical briefing on the PSDPA by my legal team to any committee members who would be interested, if you think this would assist in your ongoing and in-depth review of this important legislation. Our shared goal is to have a responsive and complete whistle-blowing regime in the federal public service and anything I can do to support this, I'm happy to offer.
In closing, I would like to say that I remain confidently in support of the 16 proposals for legislative change that I tabled with you on February 14. I hope that committee members are able to support them as this review process draws to a close. I look forward to our discussions today.
It's very brief, like my last one.
Thank you, Mr. Chair.
Joining me this morning is François Choquette, senior legal counsel for the Tribunal.
The Tribunal's very existence serves as a safeguard for the integrity of the public service as it demonstrates the seriousness of the government's commitment to protecting public servants who make disclosures. The Tribunal is the ultimate safety net for public servants and it helps encourage the uncovering of wrongdoing.
As previously shared with the committee, under the current legislation reprisal complaints must first be received and investigated by the commissioner. If the commissioner deems that the reprisal complaint is justified, he submits an application to the tribunal to determine if reprisal occurred.
The jurisdiction of the tribunal and the number of cases it handles is really tributary to factors outside of its control.
Our experience in adjudicating disputes has been limited thus far, mainly due to the low number of cases the Tribunal has received.
Subsection 21(1) of the PSDPA states that “proceedings before the tribunal are to be conducted as informally and expeditiously as the requirements of natural justice and the rules of procedures allow”. The tribunal, like other quasi-judicial bodies, operates under the open court principle and is governed by its rules of proceedings that were established in 2011.
These rules can be liberally interpreted with the aim of ensuring informal and expeditious resolution. As such, as a matter of policy, the tribunal also offers a voluntary mediation process to attempt to resolve a complaint reprisal without a hearing. As mediation is voluntary, it cannot be imposed on the parties. This mechanism also allows the parties to reach a mutually agreeable resolution through the assistance of a neutral third party. Generally, mediation is less time consuming, less costly, and less adversarial than a judicial hearing. In fact, this has led to most of the tribunal cases being settled prior to a hearing.
The Tribunal's role is to adjudicate complaints and determine whether or not reprisal has taken place, and to apply the law enacted by Parliament to the facts before it. Should Parliament decide that added powers be vested in the Tribunal, or that legal rules regarding its mandate be modified, those powers and rules will be applied in the same spirit of fairness and justice that has characterized the work of the Tribunal thus far.
Mr. Chair, this concludes my statement. I would be pleased to answer any questions the committee may have.
Thank you, Mr. Chair, and thank you everyone for appearing once again before us.
Mr. Friday, I want to talk about some specific cases. First, I want to thank you for bringing those technical sections to light with the committee, and how they deal with contractors and private actors.
We had a contractor before us the other day, as you know, Mr. Garrett. There seem to be protections available in the legislation for him, but for whatever reason, it's fair to say he doesn't feel like those protections were provided, or he obviously is in a difficult situation. I spoke with him after the event. It will come as no surprise that he, in hindsight, probably never would have said anything based on how things have come out with the investigation, and how his life has literally changed.
How do we address this? You can look at Ms. Therrien and Ms. Gualtieri who appeared before us. Are these just people who have slipped through the cracks of an otherwise good act? These people are suffering real issues. Their lives have been changed forever, and I'm hearing that the act ought to protect them. What went wrong?
The three cases you mention offer some interesting contrasts. For example, Ms. Gualtieri never went through the whistle-blowing system. She went through the court system, which is always an option for anyone. That may be because she didn't feel she had confidence in the system, I'm not sure, but I respect her decision in any regard.
What it actually demonstrates is the depth of complexity of a whistle-blowing system. When I speak to colleagues in the provinces and territories, and in other countries, we have many overlapping concerns, many different concerns that come from different models of whistle-blowing legislation. It's all based on a recognition, certainly on my part personally, of the difficulty in coming forward.
What we have tried to do with our 16 proposals is address those to a significant extent. One that I'd like to underscore and may come back to many times is the reverse onus before the tribunal, which has a sort of cascading effect that will do wonders. I don't want to overstate it and be too exaggerated, but it will mean very significant progress. It's a reverse onus at the tribunal, but it has other effects that address some of the issues that perhaps these people and others may have come forward with.
One of the goals is, as Madam Boyer said and I referred to the proceedings before the tribunal, having to be under law, expeditious and informal. My proceedings are bound by that same legislative requirement.
At this point, it's easy to say that I have the obligation. It's a little harder in a formalized and increasingly litigious process to ensure informality and expeditious proceedings. One of our goals is to take some of that formality away, if at all possible, without putting whistle-blowers in a more precarious position.
It's an ongoing balancing act that is reflected significantly in my proposals, but there are other ways as well.
I will split my time with my colleague because I have one particular question.
I would like to go back to the issue of grievances.
My understanding is that grievances and whistleblower complaints are handled differently.
Please explain what would happen in the following scenario. Let's say that an employer decides to transfer a whistleblower to another location—this is easier to do in certain departments—and there are suspicions that this is a way to punish the employee. For example, say that the employee worked in Montreal and he or she was transferred to the Northwest Territories without a reason being given. In terms of the union or labour standards, this may not seem unreasonable. However, experience clearly shows, or at least gives cause to believe, that this is a way to punish a whistleblower. In this case, there would be no grounds for a grievance and you would not be able to intervene. It could not be proven that the transfer was a punishment; it might even seem like a promotion.
What would be your position in such a situation? Could you look into this case on the basis that a disclosure was made that warranted examination?
I was not the decision-maker for Mr. Garrett's file when the decision was made. I certainly understand that Mr. Garrett has endured a difficult situation, a situation from my understanding that has multiple components. There were contract issues as well as occupational health and safety concerns that both fall under the Canada Labour Code and provincial legislation, and the B.C. Workers Compensation Act.
My understanding, from those who have worked directly on the file when it was being decided by the previous commissioner, and from my own involvement, was that Mr. Garrett pursued various recourses to deal with these issues, one of which was a disclosure to our office.
We analyzed it, we carried out an investigation, and the results of our investigation were that the allegation of wrongdoing as presented was unfounded. Those findings were consistent with the findings of a provincial body called WorkSafeBC, and also consistent with an investigation that was carried out under the Canada Labour Code.
These issues had been looked at by other bodies, and that was part of the evidence in our investigation.
We have from my office. I don't want to sound overly defensive, but as a micro-organization with 30 people, I have three full-time employees working on education, as well as parliamentary relations, to try to get those messages out.
I mentioned the video, for example, and I mentioned that the Treasury Board has the statutory obligation to disseminate information and create a more positive climate, so I would be interested to hear this afternoon's testimony. However, we've provided, under tab 3 of the binder that was originally provided to the committee, a list of the activities that we currently undertake.
This is something that we continue to do. I think if you look at, for example, the OECD report on whistle-blowing in which Canada's system is described, they identify communication as one of the overall best practices. This is not something you do once; communication is a daily challenge for us.
People don't want to get up in the morning and the first thing they think of is, “Gee, where's the whistle-blowing commissioner?” It's more like we use the fire station analogy. If they see something wrong, automatically they should know who to call: us or their senior officer, who know about the regime.
We make every effort in our initial case analysis process to have conversations with people who come forward about their options, so that they're making informed decisions. This is very important to us at our intake and case analysis level.
I would also make the point that when our office was created, we were put in an already very crowded landscape, and we are operating in that crowded landscape. One risk that we want to manage and avoid is having more than one process dealing with the same case at the same time, from the perspective of duplication of resources, duplication of time and effort on the part of the complainant, and the possibility of conflicting outcomes. Here, the discretion to act and some of the prohibitions either to act or not to act are an attempt to address this crowded landscape.
To speak to the heart of your question, in the absence of an official body providing that information we try our very best to do it, which goes to some of the training I just mentioned, on communication.
There are outside entities that we see being very active in other countries as well, such as Public Concern at Work in the United Kingdom, which is always discussed when we're talking about whistle-blowing. Public Concern at Work is a registered charity; it's not a government body.
Yes, and I think the act obviously acknowledges that reprisals are a significant hurdle preventing a whistle-blower from coming forward.
I would also suggest that just the process itself may be an obstacle to whistle-blowers coming forward. Again, I go back to, “Why should I?” If I'm that person, I have to ask myself this. I have a family to support. I have a good job. I like my job. I like my co-workers. All this is potentially at risk just by my coming forward, even without any reprisal. You're labelled; you're thought of differently.
Then you have to subject yourself to, I think, an onerous process, procedurally speaking. Just navigating this, you would need legal advice just to figure out where to go, who to talk to, who to air your grievance with. Should I go to the union? Should I go to my harassment officer? Do I go internally? Do I go to your office, Mr. Friday? What happens if I do that? What are the consequences? All this analysis needs to be done, frankly, without the skills to do the analysis, because no person would necessarily be appreciative of all the consequences of these big decisions.
I understand the reprisals need to be addressed, but how can we make it easier for someone who sees wrongdoing to just come forward and know that's okay and that should be a natural part of the job, and we're grateful you're coming forward? How can we get to that point?
I don't want to sound like I'm being evasive by saying it goes to the issue of a larger cultural change. I can point to some of the recommendations in the research paper we just released, which I support. They go to changing styles of leadership, styles of communication, creating a different sense of what loyalty means. The preamble of our act specifically says that this act attempts to balance the constitutionally protected right of freedom of expression with the duty of loyalty to the employer, as has been expressed by the Supreme Court in several cases.
The system we have not only for whistle-blowing but also for any disputes or conflicts—and I know this from my own alternative dispute resolution practice—is plugged into a formal system, and the more formal, the longer, the more expensive the system is, the more we see an increased trend toward litigiousness.
One of the ironies, perhaps one of the sad ironies, of getting well known, or better known, through our now 13 case reports is that the people are realizing that maybe they do have some teeth. People are fired. People are resigning during investigations at high levels. This seems to have had the effect of people lawyering up earlier in the process, which is understandable but not necessarily helping to increase access to the justice system, of which we are arguably a part.
With respect to reprisal specifically, and true to my earlier—
I have to say that the analyses we are carrying out in order to discover the shortcomings and problems amount to a microanalysis. From the outset, the committee has focused on the details of the bill and the internal mechanisms. I am wondering whether there is a broader problem.
In fact, in Canada, it is as though we vacillate between the U.S. and the U.K. mechanisms. I will elaborate on what I am trying to say. In the United States, accountability for political decisions made by the bureaucracy rests with the authority responsible for the public service whereas in the UK it is a function of ministerial responsibility.
We definitely see that ministerial responsibility, in the most extreme cases, that is, the resignation of a minister, practically no longer exists in Canada. No politician has the courage required to resign. We could talk about this at length.
It seems that, in 2007, we wanted to create a law patterned after what was being done elsewhere in the world. However, in some ways, it is not adequately aligned with our political system, which is based on the Westminister system.
My colleague spoke about the internal mechanism. If a public servant witnesses an act of wrongdoing, he or she reports it to the senior officer responsible for disclosures within the department. This senior officer must inform the deputy minister of the department in question, and not the public or the Commissioner. The deputy minister may perhaps inform the minister—but surely will not—or perhaps will inform the Treasury Board, which is supposed to be at the top of the decision-making chain. This stems from our parliamentary system of ministerial responsibility.
We can see this with the Phoenix pay system. No employee who witnessed wrongdoing with respect to Phoenix would inform the senior officer at Public Services and Procurement, who in turn would tell Ms. Lemay. Ms. Lemay is managing the crisis at this time. Her minister asked her to resolve this as quickly as possible stating that she herself would not resign on this account. In the past, the minister would have resigned a long time ago, if only as a matter of honour.
Do you not believe that instead of reporting wrongdoing to the Treasury Board or the deputy minister, the senior officers should report the wrongdoing directly? It would be a way to establish a real system of accountability for the bureaucracy.