Evidence of meeting #72 for Government Operations and Estimates in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was commissioner.
A recording is available from Parliament.
Director of Labour Relations, General Counsel, Association of Canadian Financial Officers
You're talking about millions of dollars, and sometimes even billions, so it's a high incentive. That goes into the risk-reward aspect for a whistle-blower. There are the costs of legal representation even to do the right thing.
Conservative
Kelly McCauley Conservative Edmonton West, AB
That's one of the recommendations we heard, to move up the money we provide for people to have legal representation.
Director of Labour Relations, General Counsel, Association of Canadian Financial Officers
It's not so bad with the unionized employees. We provide that representation. In my office we're all lawyers—
Director of Labour Relations, General Counsel, Association of Canadian Financial Officers
—who are in labour relations.
Director of Labour Relations, General Counsel, Association of Canadian Financial Officers
I do tell my four sons not to be lawyers.
Someone who is a manager or who doesn't have union representation has to pay a high price for legal representation, particularly if there is reprisal.
Conservative
The Chair Conservative Tom Lukiwski
Thank you very much.
Our final intervention will be by Mr. Whalen.
You have five minutes, please.
Liberal
Nick Whalen Liberal St. John's East, NL
Thank you very much, Mr. Chair.
Thanks to all of you for coming.
I want to maybe take the question in a different line. I see how the confidentiality provisions that pervade the act help the wrongdoer and I see how they help the departments, but I don't see how they help society as a whole and I'm a bit equivocal on whether or not they help the wrongdoer.
Mr. Chamberlain, could you speak a little bit to the benefits that actually accrue to a whistle-blower who has to have all these confidentiality regimes around the disclosure of wrongdoing when perhaps it doesn't serve their benefit?
February 21st, 2017 / 9:40 a.m.
Director of Labour Relations, General Counsel, Association of Canadian Financial Officers
In cases like that of Doreen, who has authorized me to use her name although it has been confidential up until this point in time, it serves them to the extent that their name is not on the decision. They may want to work in another department and not want their reputation attached to whistle-blowing and the stigma that may be attached.
Confidentiality in terms of the complainant—
Liberal
Nick Whalen Liberal St. John's East, NL
I can see that if we agree there's a stigma and keep promoting the fact that there's a stigma, then there's going to be a stigma—
Director of Labour Relations, General Counsel, Association of Canadian Financial Officers
Yes.
Liberal
Nick Whalen Liberal St. John's East, NL
—but if we say there is no stigma and there's no confidentiality either, it forces the herd to change their behaviour. Would you not agree?
Director of Labour Relations, General Counsel, Association of Canadian Financial Officers
I agree that if there is no stigma, that's a good thing, but it's more than just saying there's no stigma. You need to make changes to the legislation to ensure that people don't suffer because of what they've done, and that's not the case right now. It's not just stigma. I don't think you're ever going to eliminate that.
Liberal
Nick Whalen Liberal St. John's East, NL
But the herd doesn't know. Your friends and colleagues shouldn't know whether you're a whistle-blower. If they know, it's because someone has broken a confidence to tell them. That further isolates the person. I don't necessarily see how confidentiality benefits the whistle-blower.
The next point would be on reprisals.
Director of Labour Relations, General Counsel, Association of Canadian Financial Officers
Yes.
Liberal
Nick Whalen Liberal St. John's East, NL
Why not just deal with reprisals through the regular labour relations, arbitration, and adjudication process? It's just another poor labour relations issue. Their rights as an employee have been violated, and I don't see how it's any different from any other type of grievance that an employee might be able to file.
Director of Labour Relations, General Counsel, Association of Canadian Financial Officers
Here's the difference. Things can be done that are perfectly legal within the collective agreement which negatively impact the employee; they could be attached to performance or other things, but they're being done for the purpose of reprisal.
Having a reverse onus in the act is another option. I can tell you that we do grieve things through the grievance process that have happened to employees that are probably reprisals for their speaking up, but it can't be the only avenue, because often it's not something—
Liberal
Nick Whalen Liberal St. John's East, NL
Why not just change the avenue so that the labour relations arbitrators are allowed to take reprisal into account when they adjudicate? If it's found that they are a whistle-blower or that they're falsely associated with a whistle-blower or they fall under the expanded definition of whistle-blower that's being proposed by the commissioner, or the expanded definition of reprisal, why not just allow these specialized labour relations tribunals to adjudicate reprisal?
Director of Labour Relations, General Counsel, Association of Canadian Financial Officers
It's the same question as in the case of pay equity. You can do that, but you would want to make sure they have the same powers. They're arbitrating the collective agreement. The collective agreement doesn't provide damages that a person could get under the Public Servants Disclosure Protection Act. The arbitrators don't have the powers to do—
Director of Labour Relations, General Counsel, Association of Canadian Financial Officers
I'm not opposed to the concept, but the devil's in the details. As long as it's independent, outside, not confined to the department....
The difference with a grievance that's based on the collective agreement is that we can bring it to an independent tribunal or adjudicator at the end, but if it's a staff relations grievance that's not related to a collective agreement provision, it stops at the deputy head, so it's still contained within the department.
I'm not opposed to what you're saying, but there's a lot of work to be done to get to the point at which that solution would be effective. I think you'd want to test the broader powers with PSIC before you start going outside again.
Liberal
Nick Whalen Liberal St. John's East, NL
Okay.
Mr. Ferguson, do you have any comments on whether or not, in your understanding, confidentially helps or hurts the situation?