Government Operations Committee on Feb. 14th, 2017

[Joe Friday]

With most of the complaints we received, there was no disclosure. The problem is that all the reprisals happen in the workplace. But not all labour relations problems are reprisals. All reprisals are a way of getting revenge, but all cases of revenge are not reprisals under the act.

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

That's why I'm kind of playing the devil's advocate.

For the past three weeks, a number of witnesses have told us that the act is not always working as it should be and that a lot of whistleblowers are not properly protected. Based on your figures, a number of people said they were subject to reprisal, but you told them that it wasn't the case.

Ultimately, perhaps the act is not as bad as it seems. It is also important to prevent public servants from starting to think that, when their superior tells them to act in a certain way, it is a reprisal. There's also authority in public service and it is important to be able to exercise it.

Is the act as bad as that? In a number of your decisions, you told public servants that they were not victims of reprisal.

[Joe Friday]

Fifty per cent of cases are outside our jurisdiction. I don't have the jurisdiction to handle 50% of the cases that are submitted to me.

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

What sorts of cases are you not able to process?

[Joe Friday]

For instance, the act doesn't allow me to process grievances. There are also complaints from provincial public servants, which don't fall under my jurisdiction.

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

I admire public servants, but for the purposes of the study, let me ask the following question. Do some public servants abuse your services to solve internal problems, to advance in their careers or for other things? It's a valid question, after all.

[Joe Friday]

Yes.

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

We have to look at all the possibilities.

[Joe Friday]

We have never concluded that there was bad faith.

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

You want to believe in good faith, but, ultimately, you very often tell the people there are no grounds for challenges. As you said, you don't have the authority to handle 50% of the cases.

[Joe Friday]

That's right.

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

For the other 50% of the cases, you have the authority, but you tell those people that there are no grounds for challenges.

[Joe Friday]

Yes, but a large part of cases are rejected for other reasons, when they file a grievance, for instance. Those cases are already settled through a different process under a different piece of legislation. We are not a court of appeal.

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

Certainly, the numbers don't tell the whole story.

Thank you.

[The Chair, Conservative, Tom Lukiwski]

Thank you very much.

Go ahead, Mr. Peterson, for five minutes, please.

[Kyle Peterson, Liberal, Newmarket—Aurora, ON]

Thank you for that, Mr. Chair, and thank you to the witnesses for being here with us this morning.

I have a few questions.

Mr. Friday, you suggest some legislative changes, but in your presentation you also rightly acknowledge the need to change the culture. Obviously it takes more than legislative change to effect that change.

In your defence and in your department's defence, though, the culture itself isn't really a unique culture. The culture you're pushing against is actually human nature. If I'm a whistle-blower or an employee, why would I come forward with a complaint? Why would I subject myself to what I consider a very cumbersome process, to the possibility of reprisal, and to the possibility that I might be wrong or may have misinterpreted or didn't really see what I thought I saw? It seems to me the obstacles in the place of a potential complainant are manifold, and some of them are, quite frankly, beyond your or anyone's control.

I think the crux of whistle-blower legislation in general is that it's trying to address human nature, the tendency for people to go about just doing their jobs, putting their time in, supporting their families, and not wanting to rock the boat, so to speak—and who can blame them?

The more cumbersome we make it.... I come from the world of litigation, and the biggest complaint among my colleagues is that civil procedure is extremely cumbersome and is not necessarily fair to the plaintiff. Defendants can use it to slow down the process, to delay it and get to the end they want.

Then I came here, and I realized that Ontario civil procedure is like a walk in the park compared to some of the regimes we've built here in Ottawa. Even under this act, I have three options as to where to come forward as a complainant, but I can also grieve it to my union. There may be a human rights component, and in that case I can avail myself of the Canadian Human Rights Act.

It seems to me that the process is massive and that we don't do enough to empower the potential complainant. Even if we could change the culture and change the attitude, what would I do, practically speaking, if I were a new employee or a relatively young employee and I saw something I thought was wrongdoing? Even if you appeal to a sense of duty or my sense of doing what's right for Canada, why should I be the one taking that risk when there are 400,000 other people who aren't? I see that as the big obstacle, and I don't know what you, Mr. Friday, or what we as legislators can do to address that obstacle, except maybe make this culture shift.

There seems to be a consensus that there are not very many complaints coming forward. Maybe there's nothing anyone can do about it, but we can make sure the complaints that do come forward are processed properly, that the procedural fairness levers are place, and it doesn't become.... The fear of reprisal, I think, is only one obstacle. Who wants to become engulfed in procedure after procedure and lengthy delays, not knowing what it's going to do?

Mr. Chair, I've represented complainants in civil proceedings. It changes your life. It becomes your entire life. If you are on a three- or four-day trial, the month before, you can't think of anything else. You can't sleep. It literally takes the wind out of a lot of people's sails. If I'm working for the public service, why would I want to risk all that for what I think might be a wrongdoing, when none of my colleagues are coming forward?

[Joe Friday]

First of all, Mr. Chair, as a former litigator I fully understand where you're coming from. You raise an interesting question—one that I've spent a lot of time thinking about and have actually spoken about as well, most recently at the Council on Governmental Ethics Laws Conference in New Orleans, and at the OECD—and that question is, how do we define success? Is it only about the number of final case reports we table, the number of findings? Is it the number of people who come forward, regardless of the outcome of the case, because that indicates that they're not afraid and they have confidence in the system? Is it the extent to which people feel they have been treated fairly? Does that build their faith and loyalty in the system? I don't want to underplay the importance of making reports, but I think the definition of success in this field is far more multi-faceted and varied.

With respect to steps that can be taken to address this issue of navigating the web of mechanisms, I'm very happy to say that my team spends a considerable amount of time doing that with everybody who contacts them. We find it falls on our shoulders to try to explain this process. In many cases, people have been to a number of other places and have been told that it's the wrong place or it isn't where they should go. Many people who are providing the information don't—

[The Chair, Conservative, Tom Lukiwski]

We'll have to cut it off there.

I do apologize because, frankly, I think Mr. Peterson has locked on to probably one of the most important facets of what this committee needs to do. We have certainly, from the Chair's perspective, received information from whistle-blowers who, unfortunately, because of their fear of continued reprisal, have not agreed to come forward, even under the cloak of anonymity or the assurances of an in camera proceeding. I think whether or not there are adequate protections being given to those people who do come forward is a real concern. As Mr. Peterson said, why should they? Unless that changes, nothing else will happen.

That's an extraneous comment; I apologize for that.

Before we go to Mr. Weir, I will say this, colleagues. I mentioned that there will be bells ringing. My understanding now is that it's going to be on a time allocation vote, which means, procedurally, that after the motion is put, there will a 30-minute debate, and then the bells start ringing. I think we will probably have almost the entire meeting.

I should have another rotation of questions for the government side, a full round. You can give it to the clerk. It will be the same thing for the opposition, and Mr. Weir, I know where you stand on all of this.

Mr. Weir, you have three minutes, please.

[Erin Weir, NDP, Regina—Lewvan, SK]

Thanks very much.

Mr. Friday, I was going to ask if you can think of any Canadian federal whistle-blowers over the past decade who would be deserving of public recognition and thanks.

[Joe Friday]

I don't know if I am in a position to identify someone. I don't know if I would be comfortable doing so.

I think that one starting point for me and my office is the respect for the confidentiality of a whistle-blower who comes forward. For example, when we were trying to think who might be appropriate to come to speak about their experience here before this committee, we realized how difficult it is to suggest that someone come forward.

[Erin Weir, NDP, Regina—Lewvan, SK]

Sure; if someone is coming forward confidentially, clearly it wouldn't be appropriate to recognize them publicly. However, there are whistle-blowers who come forward publicly. I think, for example, of the American Office of Special Counsel, which has an annual award recognizing courageous whistle-blowers. Is that something that you've thought about doing in Canada?

[Joe Friday]

We talked earlier on in our office about having a whistle-blowing award, and we've spoken to our American counterparts about their program for public recognition. We haven't put our minds to how we might do that in any detail recently. I don't think it's without its significant challenges and potential problems.

I think that the greatest contribution that my office can make is to satisfy and respond to people's needs individually and privately and not necessarily publicly. There are some people who don't want that kind of recognition. There are others who may want that recognition, but it's not something we've pursued with great energy.

[Erin Weir, NDP, Regina—Lewvan, SK]

I just strikes me that if one of the goals is to normalize whistle-blowing, one of the ways of doing that is to publicly recognize it—of course, not to out someone who has come forward in confidence—

[Joe Friday]

Right.

[Erin Weir, NDP, Regina—Lewvan, SK]

—but to recognize people who are out there publicly. What do you see as the reason to not have that kind of recognition?