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.
Commissioner, Office of the Public Sector Integrity Commissioner of Canada
Like any other—
Conservative
Kelly McCauley Conservative Edmonton West, AB
Are some of your resources being drawn away to do work that maybe should be handled by others, and is that affecting your operation?
Commissioner, Office of the Public Sector Integrity Commissioner of Canada
I will say that the resources we have now, with our approximately $5 million budget, appear to be sufficient to allow us to do our work. We'll be lapsing a little bit of money this year. We set some aside for contingencies. For example, you may know that we had a case report that we tabled in Parliament, and the department in question, the RCMP, sought to set that aside, and that cost us about $200,000 in legal fees, for example, so we're balancing those contingencies at all times.
We also currently dedicate two people to working full-time on communications and parliamentary affairs. We think that outreach and communication are extremely important parts of our regime.
I know I am the external decision-making body, but, for example, on our website, we produced an animated video to demonstrate how the system works—not just our office but how all aspects of it work.
Conservative
Kelly McCauley Conservative Edmonton West, AB
Every government department has probably a larger resource for whistle-blower protection than your individual department does. Should the departments not be doing this themselves?
We've heard from some departments that they've had two issues over a five-year period, but we've also seen reports that a huge majority of the staff have stated they're afraid to come forward. Are the other departments maybe dropping the ball on explaining the process or...?
Commissioner, Office of the Public Sector Integrity Commissioner of Canada
I would point out, Mr. Chair, that the act, in section 4, specifically assigns to Treasury Board or the office of the chief human resources officer the obligation to:
promote ethical practices in the public sector and a positive environment for disclosing wrongdoings by disseminating knowledge of this Act and information about its purposes and processes
Conservative
Commissioner, Office of the Public Sector Integrity Commissioner of Canada
Yes.
I do want to say that there is a specific statutory duty that's assigned to Treasury Board there. I try to supplement that by.... I don't speak on behalf of Treasury Board, but I do speak about them in terms of their role—
Conservative
Kelly McCauley Conservative Edmonton West, AB
For the sake of argument, let's say someone in department A brings up an issue and it's kept within the department. Is any of that reported over to your department? Is there any way to follow up?
Again, I'll use Health Canada as an example, because they've appeared before us. Someone has an issue, and they go to the whistle-blower. Does any of that go over to you so that you're aware of that process that's been started?
Commissioner, Office of the Public Sector Integrity Commissioner of Canada
No. That would be reported.... Under the legislation, that would be gathered by Treasury Board, which is responsible for the internal whistle-blowing regime. I would get a copy of that report, as anybody else would, but since I have no jurisdiction over the internal regime, I stay external and therefore preserve my independence, which is very important to me. I don't see it at the time, but I do see it when the rest of the world sees it.
Conservative
Kelly McCauley Conservative Edmonton West, AB
Okay.
One of the issues that came up was about anonymous disclosures. Several other countries similar to us have that. Others, like us, do not. Do you think it would promote confidence for staff to come forward under an anonymous process?
Commissioner, Office of the Public Sector Integrity Commissioner of Canada
I would like to say that the case report that I tabled on February 16 was based on an anonymous disclosure. Our act is silent with respect to anonymous disclosures. Treasury Board is of the view that an anonymous disclosure is not a protected disclosure.
I am of the view that if I get enough precise, reliable information to proceed with an anonymous disclosure, I will, and the February 16 case report involving the Public Health Agency of Canada was the first case report flowing from an anonymous disclosure. Treasury Board and I disagree on that, but I do accept anonymous disclosures as the external whistle-blowing—
Conservative
Kelly McCauley Conservative Edmonton West, AB
I think that's important considering the high lack of confidence our public servants have in terms of protection. We've seen some horrific cases of the government going out of its way to destroy people's lives. I can certainly see a need for that.
Commissioner, Office of the Public Sector Integrity Commissioner of Canada
It becomes somewhat of a two-edged sword. To encourage anonymous disclosures is not necessarily in line with fulfilling the aims of an act. I think that as you work toward a system in which people have more confidence and they see it working, they would be less likely to make an anonymous disclosure, but at this time I don't think I have the moral authority to reject one.
Conservative
Kelly McCauley Conservative Edmonton West, AB
Yes. I'm mostly sharing your view on that.
I want to get back to what Mr. Peterson was—
Conservative
The Chair Conservative Tom Lukiwski
Mr. McCauley, I think we're going to have to cut you off there, because I'm sure your question would take longer than the time we have left.
We'll go to Mr. Weir, please, for seven minutes.
Erin Weir NDP Regina—Lewvan, SK
Thanks very much to our witnesses for appearing again before the committee.
One of the things our committee has heard is that the practice of the Public Sector Integrity Commissioner over the past decade has been to reject complaints of reprisal as being out of jurisdiction if the whistle-blower has pursued a workplace grievance process, has gone to the Privacy Commissioner, or has taken another avenue.
Is that in fact your practice? If it is, how do you justify it?
Commissioner, Office of the Public Sector Integrity Commissioner of Canada
Subsection 19.3(2) provides that if there is a grievance in place, I don't have discretion. I'm prohibited from acting on something if the subject matter of a reprisal is the subject matter of the grievance. I have the discretion to not deal with a reprisal case if I am of the view that there is another process that could more adequately deal with that process.
Mr. Radford may wish to clarify, if that would be of help.
NDP
Erin Weir NDP Regina—Lewvan, SK
It would if we could maybe get some numbers about how many complaints have been turned down on that basis.
Brian Radford General Counsel, Office of the Public Sector Integrity Commissioner of Canada
Absolutely. Specifically on the issue of jurisdiction, when another body is already dealing with the same subject matter of the reprisal complaint, we have rejected 12% of reprisal complaints on that basis.
Commissioner, Office of the Public Sector Integrity Commissioner of Canada
Could I just interrupt to say that we provided to the committee reasons and statistics to all the heads for closing files, but we're more than happy to review them as carefully as you wish us to.
General Counsel, Office of the Public Sector Integrity Commissioner of Canada
The majority of reprisal complaints that have not been investigated were for reasons that they were outside of the jurisdiction of the public sector, and concerned an entity not within the definition of the public sector. In other instances, the subject matter simply did not correspond to a measure that adversely affects the working or employment conditions of a public servant.
Another jurisdictional issue is when a person has not made a disclosure, and we apply a very liberal definition of disclosure. If a person has had a discussion with their supervisor about something that could relate to a wrongdoing, we give the benefit of the doubt to the person that they have made a protected disclosure.
However, there are cases where it is plain and obvious that the person has simply not made a protected disclosure. Therefore, they may have a legitimate labour relations issue that they wish to have dealt with, but we are not the proper office for that. That represents 50% of cases that are not investigated when it comes to reprisal complaints.
NDP
Erin Weir NDP Regina—Lewvan, SK
As you know, the Federal Court of Appeal recently looked at this area. It basically determined that the Public Sector Integrity Commissioner's actions “violated the appellant's right to procedural fairness rights”, and were “incompatible with the intent and purpose of the Public Service Disclosure Protection Act.” This is, of course, from the Therrien decision earlier this year.
We're going to be hearing from Ms. Therrien later today, so I just wanted to get your response to that judgment.
General Counsel, Office of the Public Sector Integrity Commissioner of Canada
The case of Madam Therrien decided by the Federal Court of Appeal cited two issues and two problems with the commissioner's work in that regard.
We had determined that because Madam Therrien had filed grievances, and those grievances were before Public Service Labour Relations and Employment Board, indeed the restriction under subsection 19.3.(2) of the act applied to us. We had accepted some of her allegations for investigation; we had refused others. It is on the allegations that were not accepted for investigation that there was a judicial review.
The Federal Court supported the commissioner's interpretation that indeed she had filed grievances, and that they were on the same subject matter. The Federal Court of Appeal set aside the Federal Court's decision, noting that because the employer was challenging the very jurisdiction of the PSLREB to air her grievances, how could we say that the PSLREB was, in fact, dealing with the same subject matter? We will be following the directions of the court, and we will be awaiting developments before the PSLREB in the case of Madam Desjardins.
Commissioner, Office of the Public Sector Integrity Commissioner of Canada
If I could intervene just on that point, and we fully accept and respect, of course, the Federal Court of Appeal's decision. The result of that, from a practical perspective, is that we have had to put our investigation in abeyance until the grievances were dealt with, so we're not really able to even continue until the other process is finished, which to me raises an issue that we've all been concerned about, which is the speed of the process by our office.
NDP
Erin Weir NDP Regina—Lewvan, SK
For sure, you've said that you accept the Federal Court's ruling, and I guess in a sense you have to, but I guess what I'm trying to really just flesh out is that your intention is really to change your practice, and the practice of your office in response to it.