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.