Evidence of meeting #78 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 wrongdoing.
A recording is available from Parliament.
Conservative
The Chair Conservative Tom Lukiwski
Colleagues, ladies and gentlemen, I'm going to get going. Once again I want to welcome our witnesses back to our committee.
I think all of you know the procedure by now, so I won't go into any extensive detail about how the committee works.
Suffice it to say, welcome and thank you again for your appearances today on our ongoing study of the public service disclosure act and the protection of whistle-blowers.
Mr. Friday, I understand you have an opening statement, sir.
Joe Friday Commissioner, Office of the Public Sector Integrity Commissioner of Canada
Thank you, Mr. Chair, for inviting me to appear once more to discuss the review of the PSDPA, as we refer to it. It's a pleasure for me to be here this morning and to continue the discussion we began last month.
I am pleased to have with me my general counsel Brian Radford, who I am going to invite to take an active part in the discussions today. Mr. Radford has a long history with the legislation, including being part of its initial government-wide implementation planning before the actual creation of our office. I'm sure he'll be able to provide useful background and context as our discussions continue.
I am very pleased to have tabled, on February 14, 16 concrete proposals for positive and progressive change to enhance Canada's federal public service whistleblowing regime.
Since my last appearance before this committee, Mr. Chair, my office has tabled two case reports on founded cases of wrongdoing, and we have published a research and discussion paper on the fear of reprisal, authored by Dr. Craig Dowden, copies of which I understand committee members received earlier this week. This is the first such paper produced by my office—and I believe in the country—and it is an important contribution to the ongoing discussion of whistle-blowing in Canada. I spoke about the need for cultural change when I was here last month, and I note that several witnesses before the committee have since raised that same important issue. This research paper addresses this as well, including making recommendations that will support the ongoing process of that change.
As I told you when I was last here, one of my goals as Commissioner is to normalize whistleblowing. I believe that the activities we conducted last month represent significant progress toward achieving that goal.
I have followed the committee's deliberations since my appearance last month, and I am heartened by the level of focused interest on the part of so many witnesses to make real and significant progress in advancing the whistle-blowing regime. While I don't necessarily agree with the view that the regime is a failure and the law must be redrafted from the start, I can say that I enthusiastically support what I believe to be a collective will to support effective whistle-blowing, recognizing that there's not one off-the-shelf model that exists and works for every country or regime. The goals of this evolutionary process are shared by all witnesses, from what I can tell, including me.
I note the depth and focus of discussion about the process for dealing with reprisals and the fact that it is daunting and even discouraging when someone has to first wait for an investigation to be completed by my office, only then to have to go through a formal tribunal hearing—a process not unlike a trial—in order to get a final ruling. I look forward to what I hope is a fulsome discussion on these issues, including the issue of more direct access to the tribunal, which is something I'd like to say I support.
This brings me to a very important point, and one that I did not have the opportunity to fully address when I was here last month, and that is our authority to conciliate and settle reprisal cases. To date, we have successfully conciliated nine cases, resulting in settlements that the complainant participated in and willingly agreed to. In five other cases, the Tribunal used mediation to settle the matter, or the parties reached an agreement themselves during the course of the Tribunal process.
My first job in my legal career was as a private practice litigator, and my last job at the Department of Justice was heading up the alternative dispute resolution program. I think you can see where my interests and beliefs lie in respect of providing people with access to justice and to meaningful involvement in the resolution of their own disputes, and in avoiding, when possible, unnecessary litigation and the high costs associated with it.
Yes, I'd say every case my office conciliates means one less case for the tribunal, one less public decision on a reprisal complaint, and one less precedent. These are all important, but it also means that one more reprisal victim is able to get restitution for what they went through; save time, money, and emotional turmoil; and move forward with their lives. This isn't a failure, in my view, of the reprisal protection regime that I administer under the act. I should also point out that every conciliated complaint is reviewed by my office and signed off by me to ensure that no one is coerced into a settlement or otherwise makes an uninformed or involuntary decision to settle.
I was initially going to end my remarks here this morning. However, following testimony that I heard earlier this week—and that you heard earlier this week—I felt it was important for me to clarify some key points from my perspective in the aim of ensuring a clearer understanding of some important issues that the act addresses, which in turn, I hope, can contextualize some of the legislative changes I put forward last month.
I will start by saying that the act is complex, and it is drafted in a way that makes it difficult to navigate and understand, and this is again from my personal experience.
I would like to touch on three issues that I think are relevant, given the discussions before this committee to date, and which concern the extent and the effectiveness of the protections and redress mechanisms for whistleblowers and other parties involved in our activities.
First, the act does not prohibit and, indeed, it expressly provides in section 51.2 for access to the Federal Court for any party involved in the disclosure or reprisal to have a decision of my office review it. Like any other administrative decision-making body, these decisions are subject to judicial review and under the Federal Courts Act, the powers of the court are considerable. Furthermore, nothing in the act precludes a public servant from exercising any other recourse that they may otherwise have in relation to the situation.
Second, the issue of contractors with the federal government is specifically addressed in the act. It is prohibited to terminate a contract or withhold payment because a contractor has come forward with a disclosure. Further, the contractor's disclosure cannot be taken into account in the awarding of future contracts. To do so would constitute a criminal offence.
Related to this is the fact that, if someone in the private sector provides information about a wrongdoing to my office, their employer commits a criminal offence if they reprise against them. These people also have access to the courts for any other appropriate remedy.
Third, section 51.1 of the act provides chief executives with the power to temporarily assign other duties, inside or outside the department they currently work in, to a public servant who is involved in a disclosure or a reprisal complaint with the consent of the whistle-blower or the complainant.
The committee may wish to review and strengthen these elements. I would be pleased to be part of that discussion, but I do want to address what I believe is a potential misunderstanding that the act is silent on these very important matters.
I would also like to take a brief opportunity to offer a technical briefing on the PSDPA by my legal team to any committee members who would be interested, if you think this would assist in your ongoing and in-depth review of this important legislation. Our shared goal is to have a responsive and complete whistle-blowing regime in the federal public service and anything I can do to support this, I'm happy to offer.
In closing, I would like to say that I remain confidently in support of the 16 proposals for legislative change that I tabled with you on February 14. I hope that committee members are able to support them as this review process draws to a close. I look forward to our discussions today.
Conservative
The Chair Conservative Tom Lukiwski
Thank you, Mr. Friday.
I can assure you that I will consult with the committee members to determine whether or not we wish to take you up on your offer of the technical briefing.
Madam Boyer, you have an opening statement, please.
Rachel Boyer Executive Director, Public Servants Disclosure Protection Tribunal
It's very brief, like my last one.
Thank you, Mr. Chair.
Joining me this morning is François Choquette, senior legal counsel for the Tribunal.
The Tribunal's very existence serves as a safeguard for the integrity of the public service as it demonstrates the seriousness of the government's commitment to protecting public servants who make disclosures. The Tribunal is the ultimate safety net for public servants and it helps encourage the uncovering of wrongdoing.
As previously shared with the committee, under the current legislation reprisal complaints must first be received and investigated by the commissioner. If the commissioner deems that the reprisal complaint is justified, he submits an application to the tribunal to determine if reprisal occurred.
The jurisdiction of the tribunal and the number of cases it handles is really tributary to factors outside of its control.
Our experience in adjudicating disputes has been limited thus far, mainly due to the low number of cases the Tribunal has received.
Subsection 21.1 of the PSDPA states that “proceedings before the tribunal are to be conducted as informally and expeditiously as the requirements of natural justice and the rules of procedures allow”. The tribunal, like other quasi-judicial bodies, operates under the open court principle and is governed by its rules of proceedings that were established in 2011.
These rules can be liberally interpreted with the aim of ensuring informal and expeditious resolution. As such, as a matter of policy, the tribunal also offers a voluntary mediation process to attempt to resolve a complaint reprisal without a hearing. As mediation is voluntary, it cannot be imposed on the parties. This mechanism also allows the parties to reach a mutually agreeable resolution through the assistance of a neutral third party. Generally, mediation is less time consuming, less costly, and less adversarial than a judicial hearing. In fact, this has led to most of the tribunal cases being settled prior to a hearing.
The Tribunal's role is to adjudicate complaints and determine whether or not reprisal has taken place, and to apply the law enacted by Parliament to the facts before it. Should Parliament decide that added powers be vested in the Tribunal, or that legal rules regarding its mandate be modified, those powers and rules will be applied in the same spirit of fairness and justice that has characterized the work of the Tribunal thus far.
Mr. Chair, this concludes my statement. I would be pleased to answer any questions the committee may have.
Conservative
The Chair Conservative Tom Lukiwski
Thank you, Madam Boyer.
We will start our first intervention with Mr. Peterson, for seven minutes.
Liberal
Kyle Peterson Liberal Newmarket—Aurora, ON
Thank you, Mr. Chair, and thank you everyone for appearing once again before us.
Mr. Friday, I want to talk about some specific cases. First, I want to thank you for bringing those technical sections to light with the committee, and how they deal with contractors and private actors.
We had a contractor before us the other day, as you know, Mr. Garrett. There seem to be protections available in the legislation for him, but for whatever reason, it's fair to say he doesn't feel like those protections were provided, or he obviously is in a difficult situation. I spoke with him after the event. It will come as no surprise that he, in hindsight, probably never would have said anything based on how things have come out with the investigation, and how his life has literally changed.
How do we address this? You can look at Ms. Therrien and Ms. Gualtieri who appeared before us. Are these just people who have slipped through the cracks of an otherwise good act? These people are suffering real issues. Their lives have been changed forever, and I'm hearing that the act ought to protect them. What went wrong?
Commissioner, Office of the Public Sector Integrity Commissioner of Canada
The three cases you mention offer some interesting contrasts. For example, Ms. Gualtieri never went through the whistle-blowing system. She went through the court system, which is always an option for anyone. That may be because she didn't feel she had confidence in the system, I'm not sure, but I respect her decision in any regard.
What it actually demonstrates is the depth of complexity of a whistle-blowing system. When I speak to colleagues in the provinces and territories, and in other countries, we have many overlapping concerns, many different concerns that come from different models of whistle-blowing legislation. It's all based on a recognition, certainly on my part personally, of the difficulty in coming forward.
What we have tried to do with our 16 proposals is address those to a significant extent. One that I'd like to underscore and may come back to many times is the reverse onus before the tribunal, which has a sort of cascading effect that will do wonders. I don't want to overstate it and be too exaggerated, but it will mean very significant progress. It's a reverse onus at the tribunal, but it has other effects that address some of the issues that perhaps these people and others may have come forward with.
One of the goals is, as Madam Boyer said and I referred to the proceedings before the tribunal, having to be under law, expeditious and informal. My proceedings are bound by that same legislative requirement.
At this point, it's easy to say that I have the obligation. It's a little harder in a formalized and increasingly litigious process to ensure informality and expeditious proceedings. One of our goals is to take some of that formality away, if at all possible, without putting whistle-blowers in a more precarious position.
It's an ongoing balancing act that is reflected significantly in my proposals, but there are other ways as well.
Liberal
Kyle Peterson Liberal Newmarket—Aurora, ON
We did appreciate your proposals.
I come from a civil litigation background myself and practised in Ontario. We're always struggling in the courts in Ontario with how to make things less formal, make litigants able to access the system better than they can, and make it easier to access the system. It seems to me there are similar problems in this process.
Do you have any internal sort of procedures that you follow, or is everything based on the statute?
Commissioner, Office of the Public Sector Integrity Commissioner of Canada
We do have internal procedures. We have, for example, investigative steps and procedures, and a manual, which is an evergreen document, that's currently being redrafted on the issue of what we were just talking about now, essentially easier access to the tribunal. Mr. Radford and I are actually discussing whether there are steps we can take procedurally without having to change the legislation to make that procedure more informal, recognizing, of course, that when the courts review our work, they often tell us to become more formal in order to protect procedural fairness and natural justice, so there's this trade-off.
My commitment certainly, as commissioner, is to make whatever changes we can through policy. We've put a few of our policies in the briefing book that we provided for you. We have an ongoing list of issues that arise under the act that we feel we can address through a policy as opposed to a legislative change. One of those would be, for example, the discretion I have to extend the 60-day deadline to make a reprisal, and I can tell you that with that policy in place, this fiscal year we've had only two cases that have actually been closed because of that.
I think those procedures and policies are an essential part of what we're doing, and we're publishing those. They're not just internal; they are all on our website.
Commissioner, Office of the Public Sector Integrity Commissioner of Canada
Absolutely, and I can—
Liberal
Kyle Peterson Liberal Newmarket—Aurora, ON
I was going to ask you to provide that, but if it's on the website—
Commissioner, Office of the Public Sector Integrity Commissioner of Canada
In tab 6 of the initial briefing book that I provided to the committee, there are three of our policies, the three we completed after a consultation.
Liberal
Kyle Peterson Liberal Newmarket—Aurora, ON
That wasn't exhaustive, but is the exhaustive list available publicly?
Commissioner, Office of the Public Sector Integrity Commissioner of Canada
The process continues. Those are the three we have now, but we have others that are in the process of being completed. This is an initiative I started last year.
Liberal
Kyle Peterson Liberal Newmarket—Aurora, ON
Okay, thank you for that.
Just quickly, on the mediation, as a civil litigator, I'm all for mediation. Obviously both of the parties have to be willing, and that's the key.
Liberal
Kyle Peterson Liberal Newmarket—Aurora, ON
Sometimes, because things are mediated, when we look at the statistics, they might be lower than we would expect them to be. How many of these end up in mediation or in other informal processes?
Maybe Madam Boyer could talk to that.
Executive Director, Public Servants Disclosure Protection Tribunal
As I shared with you at the last meeting, we've had seven cases since the law came into force. Within those, we have not had one full hearing or a decision on merit yet. We have a hearing coming up in April.
One was scheduled for trial. After two days in the hearing, they requested mediation or an internal settlement, and the other three were settled through mediation. We often get requests from the parties to mediate as well.
Conservative
The Chair Conservative Tom Lukiwski
Thank you very much.
Mr. McCauley, go ahead for seven minutes, please.
Conservative
Kelly McCauley Conservative Edmonton West, AB
Welcome back. It's a pleasure to have you with us.
Mr. Friday, you mentioned that the act is difficult to navigate, and I accept that. Do you think it can be helped with just amendments as opposed to blowing it up and starting afresh as has been recommended by one of our experts?
Commissioner, Office of the Public Sector Integrity Commissioner of Canada
Mr. Chair, perhaps it's a question of the degree of amendment required. I think the act does reflect some key important concepts in terms of a complete whistle-blowing regime, but I think we're at the point now where, with the number of years of experience we have, we can make some changes. Of all of the ones I have submitted, I would propose that some are quite extensive. I've been asked if my proposals are actually a rewrite of the act. I suppose any proposal is, but I do think it's able to be reconfigured in a way to reflect some essential elements, one of them again—sorry to go back to this—being the reverse onus.
Conservative
Kelly McCauley Conservative Edmonton West, AB
Perfect.
Last time we met, you mentioned having some difficulty with resources. Can you just walk us through, quickly, what resources you have? You mentioned you have 30 people in your office.
Commissioner, Office of the Public Sector Integrity Commissioner of Canada
I have approximately 30 people. The focus of our resources is the operational front. We're a micro agency so, for example, I don't have my own IM/IT or HR. We buy those services from the Human Rights Commission and Public Works.