Government Operations Committee on June 12th, 2023

[Mireille Laroche]

Thank you for the question.

Yes, it would make it more accessible, because they would have direct access and then it wouldn't be stated...the decision would not be from the commissioner anymore, but what it does is that then the commissioner has no role and so fundamentally you're changing the role of the commissioner in terms of assessing those reprisals, because the person can go directly....

Again, as stated, the legal threshold is different from one to the other. It is lower based on reasonable grounds in terms of the commissioner when he actually looks at the cases, and when it goes to the tribunal it's more, as Mary Anne said, a balance of probabilities.

I'll turn to Mary Anne to see if she wants to add anything.

[Mary Anne Stevens]

Thank you.

This represents a fundamental change to the structure of the legislation, which in itself I leave it to you to decide if that's a good thing or a bad thing. The rest of the law hasn't been designed around this approach.

The way the tribunal has been designed, and the way it's been set up, is for receiving complaints by the commissioner. The commissioner serves as the triage for complaints to go to the tribunal. This would mean there would be absolutely no filters before someone goes to the tribunal, which is equivalent to a court. It's a highly judicialized process. They also would not have the support of the PSIC, because he wouldn't be there explaining how he found that there was a reprisal and why he's come to the tribunal. They would be left on their own.

Just consider that if this change is going to be made, there may be other changes that would be required in the legislation in order to make this work properly.

[The Chair, Conservative, Kelly McCauley]

Mr. Kusmierczyk.

[Irek Kusmierczyk, Liberal, Windsor—Tecumseh, ON]

Thank you, Mr. Chair.

As I understand it, the cases that make it through PSIC to the tribunal are serious cases. There is evidence and there are grounds to proceed to the tribunal. Obviously, one can reasonably conclude that without the filtering screening process of PSIC, you're going to increase the workload of the tribunal.

Do you think this potentially could have.... What's the likelihood that removing the PSIC screening process would actually delay justice for people, for public servants, for example, who have serious cases with serious grounds to proceed to the tribunal? Could this delay their ability to get justice? Again, as you've indicated, the tribunal is overloaded and flooded with cases.

[Mireille Laroche]

If the tribunal has the same amount of resources and there are more cases, I would assume it would take a bit more time to filter them and to go through them.

[Irek Kusmierczyk, Liberal, Windsor—Tecumseh, ON]

The short answer is that justice would be delayed.

[Mireille Laroche]

Potentially, yes.

[The Chair, Conservative, Kelly McCauley]

Ms. Vignola.

[Julie Vignola, Bloc, Beauport—Limoilou, QC]

Thank you, Mr. Chair.

First of all, my question remains, who are we to decide for the whistleblower what's best for them? If they are really fed up with being reprimanded, reprisals and seeing things that make no sense, to the point where they decide to go to the tribunal, who are we to tell him that they don't have the right to do so? That's my first thought.

Second, I hear my colleagues saying that so many whistleblowers will turn to the tribunal that it will end up with a backlog. Are things really that bad in our public service? Is the situation that serious? If that's the case, it's high time to implement tougher legislation.

What I interpret when I hear people raise the concern that the tribunal will be swamped with requests is that people have reasons to complain but they prefer to keep quiet right now. A stronger law would protect them enough so that they could finally complain, and the machinery of government could work better.

We can certainly agree to disagree on that, so we can go to a vote.

[The Chair, Conservative, Kelly McCauley]

Mr. Fergus.

[Greg Fergus, Liberal, Hull—Aylmer, QC]

I'd like to respond to my colleague's concern that things are really dysfunctional in the public service. That's not the case.

What I'm trying to say is that the proposed section is not going to make things easier for whistleblowers. On the contrary, it will call for higher-level legal criteria, which will complicate matters if they are subject to reprisals. We do not want to make it harder for them; we want them to have a solution available as quickly as possible, using lower-level legal criteria. That's why we have a commissioner.

We all agree on the need to ensure that the Commissioner does their job, that we change the nature of their work and that they get some support. That's one reason why we agreed with a number of the proposals in this bill. For example, it will now be possible to designate more than one person who can receive complaints. In addition, we have reduced certain thresholds.

Instead of saying has probable reasonable grounds, we tended to say, on the basis of.... I forget the wording that we had, but we changed it, placing it in good faith, a reasonable understanding.... If somebody can make a reasonable case, they could bring it forward. We brought that threshold down.

We want to see changes, but what we're doing now is opening the door to more cases going to a higher threshold that will take longer to resolve, and I don't think that's helping out the whistle-blower.

[The Chair, Conservative, Kelly McCauley]

Colleagues, shall NDP-11 carry?

We have a tie. I'll vote yes.

(Amendment agreed to: yeas 6; nays 5 [See Minutes of Proceedings])

Shall clause 19 as amended carry?

Mr. Fergus.

[Greg Fergus, Liberal, Hull—Aylmer, QC]

I would say no, Mr. Chair.

[The Chair, Conservative, Kelly McCauley]

Mr. Fergus, did you wish to speak to that?

[Greg Fergus, Liberal, Hull—Aylmer, QC]

Can we have a recorded division?

[The Chair, Conservative, Kelly McCauley]

We will have a recorded vote, Clerk.

We have a tie. I will vote yes.

(Clause 19 as amended agreed to: yeas 6; nays 5)

(On clause 20)

Shall Clause 20 carry?

Mr. Fergus.

[Greg Fergus, Liberal, Hull—Aylmer, QC]

Once again, I do believe we should be voting to negate this clause precisely because PSIC uses a lower threshold that is reasonable grounds. The tribunal uses a higher threshold of balance of probabilities.

Again, I'm not certain why we would want to refer people in a vulnerable situation to a higher legal standard than what should be available to them by having a lower legal standard. That's the reason I would vote to negate this clause.

[The Chair, Conservative, Kelly McCauley]

Shall clause 20 carry?

Is this on division, colleagues, or would you like a recorded voted?

We shall have a recorded vote.

Mr. Turnbull, we don't have you subbed in yet to vote. I'll delay for a few moments until we get the paperwork set.

We'll go ahead with the vote, and we'll get back to Mr. Turnbull.

We have a tie. I'll vote yes.

(Clause 20 agreed to: yeas 6; nays 5)

(On clause 21)

[The Chair, Conservative, Kelly McCauley]

Mr. Johns, now is your opportunity with NDP-12, which is on page 30 of the package.

[Gord Johns, NDP, Courtenay—Alberni, BC]

Thank you, Mr. Chair.

NDP-12 requires no additional funds. It extends the reverse onus of proof to all applicants to the tribunal. Whistle-blowers who apply to the tribunal currently do not have the benefit of reverse onus and, therefore, have almost zero chance of success.

Every expert this committee asked listed reverse onus as one of the very top amendments that we need to make to this bill. Reverse onus is absolutely critical to any hope a whistle-blower has to successfully prove reprisal.

[The Chair, Conservative, Kelly McCauley]

Thank you, Mr. Johns.

Does anyone else wish to address this amendment?

Go ahead, Mr. Fergus.

[Greg Fergus, Liberal, Hull—Aylmer, QC]

The least I can say is that it's consistent with NDP-11, which was passed here on division. The reverse onus part of it is not the part that I disagree with, but I do think, and I'm being quite frank here, that the existing provisions of the clause are better than the amendment being proposed by NDP-12, so I'm going to vote against it to allow for the existing amendments to stand as they are.

[The Chair, Conservative, Kelly McCauley]

Does anyone else wish to address it?

Ms. Vignola.

[Julie Vignola, Bloc, Beauport—Limoilou, QC]

I have a question for the legislative clerk.

Can you assure us that if we pass this amendment, it won't involve new spending and that the bill will not require a royal recommendation as a result?

[Dancella Boyi]

We have verified and analyzed the amendments submitted that are currently in the bundle, and this issue has not been raised by our team.