Government Operations Committee on Feb. 14th, 2017

[The Chair, Conservative, Tom Lukiwski]

Colleagues, ladies and gentlemen, I call the meeting to order. It's 8:45 a.m.

For the benefit of the committee, my understanding is that we may have these proceedings interrupted by bells for a vote shortly after 10 a.m. If that's the case, then we will probably adjourn very quickly after that, just to ensure that everyone can make it back to Centre Block for the vote. I'll gauge that when we get there. I would certainly like to be able to get one full round in. That means all of the seven-minute and five-minute rounds and Mr. Weir's final three-minute intervention. I would like to get that done before we adjourn.

With that, I welcome all of our witnesses who are appearing before us today.

Thank you very much, ladies and gentlemen, for being here. I understand that a couple of you have opening statements, and Mr. Friday, you're first up on my list.

Go ahead, Mr. Friday, for 10 minutes or less.

[Joe Friday, Commissioner, Office of the Public Sector Integrity Commissioner of Canada]

Thank you, Mr. Chair.

I would like to thank the committee for inviting me to appear before you this morning. Joining me today are France Duquette, Deputy Commissioner, and Brian Radford, General Counsel.

I'm delighted, Mr. Chair, to be here to discuss our experience in administering the Public Servants Disclosure Protection Act as it applies to me and to my office, and to have the opportunity to present you with concrete proposals that I firmly believe will contribute to a stronger and more responsive federal public sector whistle-blowing regime.

The proposed amendments are based on our 10 years of experience as the external option for whistle-blowers in dealing with more than 750 disclosures and more than 250 complaints of reprisal. They are also influenced by the experience of other legislation at both domestic and international levels and can be grouped under three main goals.

Our proposals are first intended to facilitate and encourage the making of disclosures of wrongdoing, including clarifying and emphasizing confidentiality. Second, they are intended to remove practical barriers from my office to be able to carry out its investigations. Finally, and of essential importance, they are intended to address the unreasonably heavy burden placed on the shoulders of reprisal complainants and to strengthen the protection offered to them.

Before discussing the details of the proposals, I'd like to take a few minutes to discuss the context in which we conduct our work and the context in which these proposals were developed.

In the words of Madam Justice Elliott of the Federal Court in a recent decision, the whistle-blowing regime established under the act “addresses wrongs of an order of magnitude that could shake public confidence if not reported and corrected”, and that if proven involve “a serious threat to the integrity of the public service.”

We were not established to address every problem or issue that might arise across the vast public sector, but rather those situations serious enough to warrant Parliament's direct attention or the involvement of an adjudicative body such as the tribunal represented here by Madame Boyer and Monsieur Choquette this morning.

In carrying out my duties under the act, I should emphasize that I am not an advocate for any party. Rather, I am a neutral decision-maker who is required to be objective and impartial and to respect all parties' rights to procedural fairness and natural justice.

I'm confident, Mr. Chair, that you and committee members would agree with me that there cannot be an effective whistle-blowing system without a culture shift so that speaking out about potential wrongdoing is an accepted part of public sector culture and can be responded to and supported in a climate free from reprisal and free from fear of reprisal. I believe that over time this can be achieved. We are still in the first generation, so to speak, of implementing this legislation, but the opportunity now exists, with this review, to move us closer to our goal.

With this in mind, I have to stress that a small office of 30 people with an annual budget of about $4.8 million can't do this alone. A change in thinking so that whistle-blowing is normalized takes more than one piece of legislation and more than one office. It requires an ongoing collective commitment. I am an active and proud part of that collective commitment, but we must be realistic in accepting, first, that the fear of reprisal exists, and second, that a larger shift has to occur before that fear can be diminished, if not eliminated.

This fear is very real. Over the years my office has made efforts within its capacity to collect information on this issue and to try to identify ways to diminish the fear. Two public opinion research projects were commissioned by my office, the most recent one being in 2015, and they highlighted, among other things, that there has to be more buy-in from upper management in order for there to be any real change in terms of the acceptability of whistle-blowing. These changes across the public service, in other words, generally need to trickle down to the managerial level in order to result in palpable change.

My office also has recently commissioned, and will soon be releasing, a research paper on the fear of reprisal. I will provide the committee with that paper immediately upon its completion. And to advance that discussion, I would encourage every public servant and every chief executive to make whistleblowing part of ongoing and open conversations in the federal workplace.

Recognizing that the fear exists is the first step in addressing it.

One other observation I'd like to make is that the field of whistle-blowing is one of rapid growth, with new systems being designed and adopted across a broad range of public and private sector organizations. I can say that many provinces and territories have adopted whistle-blowing legislation that contains many similarities to ours. What we know as well is that our federal model has very distinct features, such as my independent office and a dedicated tribunal to hear cases of reprisal.

Even among countries with similar legal and governance systems, there are differences in whistle-blowing regimes. While there are core principles that are generally adhered to in any regime, one of the key challenges is designing a whistle-blowing program that responds to the particular needs and interests of the stakeholders it is serving, and one that also takes into account the overall context in which it operates, including, very importantly, the existence of other recourse mechanisms, as my office was not created to replace any other body.

I believe this must be kept in mind as we take a critical look at our own system. The act creates a whistle-blowing regime designed specifically for the Canadian federal public sector. I hope the lens through which we examine the legislation in this review process ensures we are creating a system that responds to the needs of Canadians in having an effective and trustworthy public sector.

With these observations as background, I would like to identify some key recommendations for legislative change that are among those presented in my written submissions.

In carrying out my duties as commissioner since my appointment in 2015, I have made every effort to identify opportunities to affect positive change by way of adopting policies and practices to address uncertainty in the law or to clarify, for example, how I use the considerable discretion given to me under the law.

I've done this to ensure our discussions are focused on those issues that require, in my view, formal legislative amendment in order to support our effective work. I preface the discussion by saying that the 16 specific recommendations you now have before you are those that I believe require the formality of legislative amendment to properly achieve the desired outcome of the act.

Turning to those recommendations, I'm only going to highlight, given my limited time, one in each of the broad categories I mentioned at the outset of my remarks.

With specific request to reprisals, our goal is to lessen the considerable burden facing complainants, in addition to recommending very important and, I think, essential changes, such as giving the tribunal the power to order interim remedies and the reimbursement of legal fees for the complainant.

I want to draw your attention to my proposal that once a case goes to the tribunal, a reverse onus of proof is established. In other words, the complainant, the party with the least resources and the least power, does not have to prove that a reprisal took place. Rather, the employer has the onus to prove that what occurred was not reprisal.

I feel strongly that this is fair and just, as it seeks to level what is otherwise an uneven playing field. I was pleased to hear the previous witness's support of the same recommendation, and I also believe this represents best international practice.

I'm also proposing recommendations to encourage and support confidence and trust in the regime. A key recommendation in this regard is the removal of the good faith requirement for a whistle-blower or reprisal complainant. This may initially strike committee members as counterintuitive, but in reality, this requirement incorrectly focuses attention on the motivation of the individual coming forward rather than the actions being reported. The test should be whether the person believes the information is true, not the motivation to come forward. In my written submissions, as I emphatically state, motivation is not relevant. What is relevant is whether a wrongdoing or reprisal took place.

We are also, as you will see in my submissions, making recommendations to strengthen and clarify the provisions that enable our protection of confidentiality. I simply want to underscore, in my opening remarks, the importance of confidentiality in any whistleblowing regime.

In that regard, I'd like to come back to something I believe was said before this committee last week that is of serious concern to me and my office. As I understand, it was stated that the first thing we do when receiving a disclosure is to inform the deputy head and to communicate the name of the discloser. If there's one thing we're extremely careful about protecting, it is the identity of the whistle-blower. I hope this is not what was intended to have been said. I will happily respond to any questions about our processes in that regard.

Finally, another theme of our recommendations is addressing barriers to our ability to do our investigations. I draw your attention to one proposed amendment in particular. The act currently prevents my office from obtaining information from outside the public sector. This is a significant limiting factor in our gathering of evidence. For example, information in the hands of retired public servants is not technically within our reach, nor is information in the possession of third parties outside the public sector.

My request and recommendation is to simply repeal that section of the act to remove a clear barrier to my ability to carry out a full investigation.

In closing, I would like to say that our recommendations aim to strengthen and support responsiveness, effectiveness and accessibility in a way that I am confident will increase the trust of public servants in the regime that is aimed at protecting them.

That concludes my presentation.

I'll now be happy to answer any questions you might and to review any of the 16 proposals that I am very proud and confident to be putting before you this morning, Mr. Chair.

[The Chair, Conservative, Tom Lukiwski]

Thank you very much, Mr. Friday.

Madame Boyer, you have 10 minutes, please.

[Rachel Boyer, Executive Director, Public Servants Disclosure Protection Tribunal]

Good morning and thank you very much, Mr. Chair and committee members, for the invitation to appear before you as you study the Public Servants Disclosure Protection Act.

I am joined by my colleague, François Choquette, our Senior Legal Counsel.

I thought I would begin by taking a few moments to discuss the mandate of the Public Servants Disclosure Protection Tribunal, as it will inform the scope of my presentation. I will then follow with an overview of the legal principles that govern us when dealing with complaints of reprisals. Finally, in closing, I will provide the committee with some statistical information that may be of interest.

The Public Servants Disclosure Protection Tribunal is one of two governmental bodies created under the act in 2007 to protect public servants from reprisals as a result of a protected disclosure or if they have participated in good faith in an investigation of wrongdoing. You have already heard from my colleague, the commissioner. It is important to note that there is significant interplay in the contributions that each organization makes toward protecting whistle-blowers from retaliation and the resolution of these complaints under the act.

However there are important distinctions to be drawn between our two organizations. The commissioner's mandate is multi-faceted, and includes a wide range of powers, duties and functions. By contrast, the statute has only assigned one main function to the tribunal: to determine whether or not reprisal has taken place as the result of a disclosure. This creates a special relationship between the tribunal and the commissioner, which is reminiscent of a similar model put in place in the area of human rights protection, between the Human Rights Commissioner and the Human Rights Tribunal of Canada.

So an individual who believes that retaliation against him has taken place, because of a disclosure of wrongdoing within the meaning of the act, or because he has co-operated in an investigation, can file a complaint to that effect with the commissioner. If, after an investigation, the commissioner has reasonable grounds to believe that reprisals occurred, he may refer the case to the tribunal.

The parties who are entitled to appear before the tribunal include the individual who filed the complaint, the complainant, the complainant's employer, the person or persons alleged to have engaged in acts of reprisal, and the respondent or respondents, as well as the commissioner, the office that initiated the adjudicative process.

The tribunal is an independent quasi-judicial body composed of a chairperson and no less than two members and no more than six other members appointed by the Governor in Council. All of these members must be judges of the Federal Court or of a superior court of a province, and each member is appointed for a term of no more than seven years and holds office as long as he or she remains a judge.

As a quasi-judicial body, the tribunal has many of the powers and attributes of a court. It is empowered to find facts, to interpret and apply the laws to the facts before it, and to award appropriate remedies and disciplinary actions. The tribunal's hearings have much the same structure as a formal trial before a court. The parties before the tribunal lead evidence, call and cross-examine witnesses, and make submissions on how the law should be applied to the facts.

As parliament has only assigned to the tribunal the role of adjudication on the issue of reprisal, it has no regulatory role vis-à-vis employment practices in the federal workplace. It cannot be involved in crafting policy, nor does it have a public advocacy role. These roles are assigned to other bodies, as explained by the commissioner. According to the act, different duties and obligations are also imposed on chief executives within the public sector, on the Public Sector Integrity Commissioner, and on Treasury Board.

In addition, as the tribunal is made up of judicial members, it never had administrative or management responsibilities, nor was it ever designated as a department under the Financial Administration Act.

When the legislation was enacted in 2007, Parliament also established a registry for the proper conduct of the work of the tribunal and the management of the tribunal's administrative affairs and staff. Section 20.8 of the act, which provided for the establishment of the registry, was repealed on November 1, 2014, with the coming into force of the Administrative Tribunals Support Service of Canada Act. This service consolidated the support services of 11 administrative tribunals, including the registry of the Public Servants Disclosure Protection Tribunal, into a new organization known as the Administrative Tribunals Support Service of Canada. These support services include internal services, such as human resources, information technology, financial services, accommodation and communications. The consolidation also included registry services and other specialist services required for the tribunal to fulfill its mandate, such as research, legal services, and case analysis work.

These functions now reside in the secretariat of the Public Servants Disclosure Protection Tribunal. Throughout these changes, the tribunal retained its adjudicative powers.

A number of consequences flow from the focused mandate of the tribunal, as well as from its organizational and court-like structure.

To conserve their impartiality, tribunal members must remain neutral vis-à-vis legislative changes or on issues likely to be debated in cases that they may be called upon to decide. Judicial members must remain independent from the executive branch of government.

In the context of the current study, these principles prevent tribunal members, including myself, from issuing opinions or recommendations on many of the matters that will be discussed as you review the Public Servants Disclosure Protection Act.

That now leads me to my next topic.

What legal principles do tribunal members apply to reprisal complaints? How are reprisal complaints defined? The answers to these questions originate in our enabling legislation, the Public Servants Disclosure Protection Act.

The legislation defines reprisal as a disciplinary measure, a demotion, the termination of employment, a discharge or dismissal, any measures that adversely affect the employment or working conditions of a public servant, or a threat to take such a measure against a public servant because the public servant has made a protected disclosure or has in good faith co-operated in an investigation into a disclosure or an investigation commenced by the office of the commissioner.

The tribunal has been established to enhance public confidence in the integrity of public servants. Therefore, after holding a hearing on the matter, if the tribunal determines that reprisal has occurred, it can order remedies in favour of the victims of such reprisal. In certain cases, it can also order disciplinary action against individuals identified as having taken measures of reprisal.

Following an application made by the Public Sector Integrity Commissioner to our tribunal, the mission of the tribunal is to provide public servant whistle-blowers with impartial and timely review of complaints of reprisal in accordance with the principles of natural justice. As such, the tribunal plays an essential role in the public sector disclosure process, which in turn favours the integrity of the public service.

In the last five years, the tribunal has received approximately one case per year from the commissioner. The tribunal renders on average one or two interlocutory decisions per year. This being said, the tribunal has not rendered a single decision on the merits of a case yet. That is because all of the cases received from the commissioner so far were either settled by the parties during the proceedings of the tribunal, or they are currently before the tribunal. The total number of cases introduced since the creation of the tribunal is seven, three of which were heard together in 2014, and two of which are currently ongoing.

Thank you.

[The Chair, Conservative, Tom Lukiwski]

We'll now start our seven-minute round.

Mr. Ayoub, you have the floor for seven minutes.

[Ramez Ayoub, Liberal, Thérèse-De Blainville, QC]

Thank you, Mr. Chair.

My thanks to all the witnesses for joining us today.

We have received very complete documentation this morning and it's a little difficult to go through it all, although that is not the objective. I am going to take the time to read it carefully and I'm sure we will have the opportunity to talk about it again.

Mr. Friday, I am trying to fully understand the table. It seems that a lot of the procedure falls onto your organization, even onto your own personal judgment. Put my mind at ease by telling me that it really works.

When someone wants to start a process to challenge the reprisals he has suffered as the result of a disclosure, it is you who decide whether the case will go to the Public Service Disclosure Protection Tribunal. The responsibility for transferring the file after an investigation is yours alone.

Tell me a little about the background for that.

[Joe Friday]

First, let me draw your attention to tab 9 in our binder, where we provide explanations for our procedure.

After an investigation is complete, it is my responsibility to determine whether the case will be taken to the tribunal. That is the decision I make for all the reprisal files. My office makes that decision.

[Ramez Ayoub, Liberal, Thérèse-De Blainville, QC]

What I am trying to understand is whether or not it is up to you to approve cases that go to the tribunal following the recommendations of your investigators or an investigation.

[Joe Friday]

Yes.

[Ramez Ayoub, Liberal, Thérèse-De Blainville, QC]

Okay.

From the many general reports produced in the past, it seems that there were shortcomings on the part of the person who preceded you. It seems that, to some extent, there was a lack of judgment or an abuse of power. I was not there, but that is what seems to be the case. That's what I read and that's what this says.

How are you going to proceed? Have changes been made so that we do not face that kind of problem again, so that we do not read those kinds of remarks in a general report?

That would serve to restore the confidence of the officials and the people providing information, and ensure that your organization can continue.

[Joe Friday]

Communication, awareness and improving trust in us are critical.

At the moment, we have the highest number of investigations in the history of our organization. Perhaps that is evidence that we are improving our processes. This is a permanent, ongoing challenge. We are very sensitive to the fact that, under the act, our organization holds all the power in terms of reprisals.

[Ramez Ayoub, Liberal, Thérèse-De Blainville, QC]

I will likely come back to this issue when I have studied the file you have presented to us a little more.

My impression is that the number of investigations that go to the tribunal is still quite limited. Maybe they are being settled beforehand. I have even heard that some of the disclosures you receive, particularly with regard to collective agreements, actually have to be dealt with by an organization other than yours. So, from the outset, clarification is needed on what constitutes the disclosure of wrongdoing.

[Joe Friday]

I feel that our recommendations will play a key role in improving the trust that public servants have in us. The objective of all the recommendations is to improve access to the tribunal and to resolution measures.

[Ramez Ayoub, Liberal, Thérèse-De Blainville, QC]

Okay.

In your presentation, you referred to a comment made by a witness at the committee last Thursday, to the effect that, formerly, the whistleblower's identity was automatically provided to the chief executive.

In addition, you say that you want to protect people, but you do not say that you do not do that. It leaves a door open, does it not?

[Joe Friday]

I am prohibited from identifying a whistleblower by name. We do not do that.

[Ramez Ayoub, Liberal, Thérèse-De Blainville, QC]

So what happened previously?

[Joe Friday]

The act requires that we identify the nature of the allegations but never the name of the whistleblower. That is part of the concept of natural justice and procedural fairness.

[Ramez Ayoub, Liberal, Thérèse-De Blainville, QC]

Okay.

Do you see your duty to protect the confidentiality of the whistleblower as a challenge, to the extent that, in a way, searching for information is almost inevitably going to allow the whistleblower to be identified, or allow the people involved to have their suspicions?

[Joe Friday]

Yes, we remain sensitive to that kind of risk. We must always find a balance between protecting confidentiality and protecting the right to procedural fairness and natural justice.

[Ramez Ayoub, Liberal, Thérèse-De Blainville, QC]

Thank you.

[The Chair, Conservative, Tom Lukiwski]

Mr. McCauley, go ahead for seven minutes, please.

[Kelly McCauley, Conservative, Edmonton West, AB]

Welcome and good morning.

Mr. Friday, we discussed last week that recently, with the jet fighter purchase program, about 140 public servants have been required to sign a non-disclosure agreement for life. I'm wondering if you're familiar with that.

The question we brought up last week was how these public sector employees are protected under the disclosure act if they're forbidden from discussing anything under the NDAs they've signed. Do you know if it bars them from coming forward to you?

[Joe Friday]

I do not believe that it bars them from coming to me at all.

It might be of interest to the committee to know that the definition of a protected disclosure under the act is very broad. It includes not only someone coming to us but anybody making a disclosure in this situation, in parliamentary proceedings—so if I make a disclosure this morning, I'm protected—or under any process under another act of Parliament.

[Kelly McCauley, Conservative, Edmonton West, AB]

Even if you're not, you can complain to yourself, I guess.

The group has discussed a lot about reprisals, but on wrongdoing and people coming forward, there are very small numbers. Obviously we have to have reprisal protection, but what are we doing to encourage people to come forward? We have 400,000 people covered under this, but just 86 have come forward, and wrongdoing was found in only one file in the last two years. What are we doing to encourage people to come forward?

[Joe Friday]

I might say, to begin my response, Mr. Chair, that I will also be tabling a founded case of wrongdoing the day after tomorrow in Parliament and another on the following Thursday, so there are two more coming. I can't speak—