First, I just want to give you a little bit of information about me. I'm a labour and human rights lawyer here in Ottawa. A substantial portion of my practice is representing whistle-blowers. I've represented Dr. Shiv Chopra and Dr. Margaret Hayden, Health Canada whistle-blowers; Sylvie Therrien, the EI quota whistle-blower; and Corporal Robert Reid, who blew the whistle about corruption in our mission in Hong Kong.
I've also represented a number of others who have had decisions in the Federal Court and before the tribunal. David has mentioned the track record of the tribunal. I'm doing a case in April called Dunn, which is likely to be the first decision from the tribunal on the merits of an allegation. Yesterday, I was in the Federal Court of Appeal on behalf of Edgar Schmidt, the Department of Justice lawyer who expressed concerns about how the department vets bills before they go to Parliament. I have extensive and practical experience under this act.
I want to start with the preamble to the act. It's something I would urge the committee to consider seriously as you conduct the review. Ask yourselves, is this act working in accordance with the intentions of the preamble? The preamble situates the act of whistle-blowing in the heart of our constitutional democracy. It is essential to the operation of our constitutional democracy. It ensures that governments operate properly, it enables people to expose wrongdoing, and ultimately it assists the public. Ask yourselves—you've heard the stories from my colleagues here, and you'll hear some from me—is that the way the act is running? It's not. It's broken, and it needs to be fixed.
I also note that because of that status, I would hope that the committee does give this a thorough and serious review. If you need any more information from me after this session, I would be happy to provide it. I'd urge you to follow my friend's suggestions regarding other witnesses.
I am going to speak about the reverse onus. Reprisal, in fact, is a subtle, insidious, and difficult thing to prove. It's rare that you can find overt or direct evidence of it, and as my friends have pointed out, there are many opportunities to hide that evidence by the time you get to a tribunal. Institutions and managers, often just inherently, and sometimes even subconsciously, turn against the whistle-blower. If the evidence goes, you're out of luck.
This is not an unusual notion. Reverse onus provisions exist in almost all labour relations legislation in Canada in specific cases. I'll give you an example. If you're organizing a union at a department store and your manager finds out and fires you, you can file a complaint and can allege that the termination was based upon your union activity. When you file that complaint, it's presumed to be true and the employer has to disprove it before the labour board. That process has been operating fine for decades. This is not a radical notion at all. If an employer has a reasonable, justifiable basis for the termination, then they'll win. If they don't, then the griever, in this case the victim of the reprisal, will win.
There's an added bonus to the reverse onus. You all know about how few cases actually get referred to the tribunal. In my view, that's in part because the standard the commissioner's office uses is much too high. If you have a reverse onus, it's going to have the effect of reducing the standard when they're investigating complaints, and therefore, increasing the number of complaints that go to the tribunal.
Next I want to talk about the PSIC investigative process, which is flawed. It lacks thoroughness. I find that they view whistle-blowers with suspicion. Often, it's procedurally unfair. There's a tendency to find ways not to deal with a complaint or dismiss it. They don't have a contextual or a subtle approach, in my view. What's troubling is that we have decades of jurisprudence dealing with the Canadian Human Rights Act process for investigating human rights complaints and referring them to the tribunal. That jurisprudence has set out crystal-clear standards for the process of investigation, yet we continue to have to litigate fairness issues in the Federal Court and the Federal Court of Appeal with this commissioner's office. I've done six or eight cases so far, and there will be more to come.
Let me give you two examples. The first is the El-Helou case. Charbel El-Helou made three allegations of reprisal. The commissioner decided that one was justified and applied to the tribunal. The commissioner dismissed two of them. We ended up setting aside that decision because the commissioner's process was unfair. They didn't actually give us a fair chance to influence his decision. The commissioner started a new investigation as a result of the Federal Court's order.
Even though they had already applied to the tribunal, they decided to look over that one allegation again as part of this new investigation. What they did, over my strenuous objections, was to review all three allegations and then decided there was no basis for all three of them, including the one they had already decided had a basis. Now they're taking the position before the tribunal that they can't support that allegation. That's ridiculous. It's unfathomable that they would take that kind of approach when they did have evidence in the first place.
The other thing is that in the course of their investigation, I made a very lengthy submission regarding why all these allegations should go to the tribunal. Internally, they prepared a scathing analysis of our submissions. It was highly critical of me and the whistle-blower. Did they disclose that to us before they made their decision? No. We only find this after the fact.
The second example is Therrien. Ms. Therrien goes public with concerns about using quotas to achieve savings in the EI plan. She gets suspended, her reliability status is revoked, and she's fired. She files a grievance with respect to all those things. She also files a reprisal complaint and says that each of those actions was an act of reprisal.
The grievance has nothing to do with reprisal. We're not alleging it. There's no evidence called about reprisal, nothing like that. But the commissioner's office looks at this and says, oh, she has a grievance and the grievance refers to these three events as well so we don't have to deal with it. They refuse to deal with it. They even make that decision before I get a chance to make submissions to the commissioner's office.
What we say is that I'm counsel for Therrien before the adjudicator, and we're not talking about reprisal at all there. We take the position that the adjudicator doesn't have jurisdiction to deal with a reprisal. What does the commissioner do with that? They say they don't care. It's mentioned over there and they're not going to deal with it.
This ends up going to the Federal Court of Appeal. As Mr. Cutler pointed out, less than a month ago the Court of Appeal said that's unreasonable. Just because those acts are mentioned in this other process, you can't simply refuse to deal with it. You actually have to look at it. You actually have to ask yourself the question, is reprisal being dealt with in that process?
So they'll have to ask the question again and I'm not certain what the answer will be, frankly.
I will also note that those are just two of many legal battles that have ended up in the Federal Court. The only reason those two people were able to do that was because of their unions. In one case it was the Public Service Alliance of Canada and in the other case it was the Professional Institute of the Public Service of Canada. They've been footing the bill to fix this act and how it's operating. If the two hadn't had union representation, they probably wouldn't have been able to do this.
This leads me to the question of legal fees. The fact that the act allows for legal fees of $1,500, and an extra $1,500 in exceptional circumstances, is novel and good. I welcome that, but that's not nearly enough. If you were to go all the way through the process and actually go to a reprisal hearing that lasted maybe four or five days, you would be paying at least $10,000 or $15,000, and probably more, particularly if you don't have access to somebody who knows the law and is up to speed on it.
That has to change in order to make the system more effective. It doesn't have to be giving them costs; it could also be allowing for costs to be awarded in favour of the complainant if they're successful. That's one mechanism. I would offer this caution: please do not suggest that costs could go to the respondent. If that happens, it will have a huge chilling effect on whistle-blowers, because they'll have to be told that they might actually end up paying money.
My colleagues here have spoken a bit about the impact on whistle-blowers, and I agree with them. I think the committee should know that if somebody comes to me and says they're thinking of disclosing some wrongdoing, I have to tell them certain things. I have to tell them that these events will happen, as Mr. Hutton explained. These are not undocumented. There are plenty of articles, journal articles, including an article in the British Medical Journal, about how whistle-blowers are treated when they blow the whistle.
On top of that, I have to tell them, look, you'll need to go through a very lengthy and a likely unfair and difficult investigation process. If we're successful as a result of that process, you'll have to go a tribunal, where you'll have a lengthy hearing, etc., and you may not even win. To that, a lot of people will think it's ridiculous, and they'd be a fool to disclose this wrongdoing. That takes me back to the preamble again. The whole point of the act is to encourage that person to do that. I have to discourage them as part of my advice to them.
The last thing I want to say, members of the committee, if I can be a little strong and almost emotional here, is that whistle-blowers are heroes. They risk their families, they risk their careers, and they risk financial stability in order to make the operation of government better and therefore improve the lives of Canadians.
The system they've been given for 11 years has been proven to be ineffective. It doesn't work. It needs to be fixed. This committee has a golden opportunity to do that. I would urge you to listen to people like us and do that. This is not only better for whistle-blowers. This is also better for Canadians.
Thank you.