Government Operations Committee on March 23rd, 2017

[Brian Radford]

I can tell you that we've applied that discretion in 10% of all our reprisal complaints over the years. Within that 10%, there may be instances where the commissioner decided that the matter could more appropriately be dealt with by another process. So, the person has not exercised an existing recourse, but we tell the person, “Look, your matter resembles a privacy complaint and perhaps you should go through the Privacy Commissioner.”

[Erin Weir, NDP, Regina—Lewvan, SK]

But I'm talking about someone who has already been through, let's say, the grievance process or the Privacy Commissioner process. They've been through it; they're not satisfied. They come to the commissioner. How often does the commissioner actually take that up?

[Joe Friday]

I think one thing that has to be underscored is that we don't have an appeal right. We don't review the decisions of another body. What we would do is look at the decision to see if there's anything that has not been dealt with that is just residual, that could trigger our jurisdiction to ensure that the issue is properly dealt with. I don't have a number on those files with me this morning.

[Erin Weir, NDP, Regina—Lewvan, SK]

But there are specific cases where you've done that. The person has been through the grievance process. He or she comes to the commissioner, and the commissioner says, “Yes we will look at this. Yes we will go through our process now.”

[Brian Radford]

There have been some. The 10% includes both “adequately dealt with” and “could more appropriately be dealt with”. What we do not have is a breakdown between those two differences.

[Erin Weir, NDP, Regina—Lewvan, SK]

Okay. If it's possible to provide that, it would be of interest.

[Brian Radford]

We can try.

[Joe Friday]

We can certainly do our very best given the nature of the files. I could also point out that we have also had cases in which some reprisal complainant, who has an active grievance, has withdrawn the grievance, leaving us in a situation where we no longer have to face that prohibition. Again, on the basis of respecting the choice of an individual, if someone chooses to go to a grievance instead of coming to me, that is his or her right, and I respect that. If someone has a grievance and says, “I'd rather come to you. I'm going to withdraw my grievance”, I respect that choice as well within the confines of the law. This has only happened in maybe one or two cases.

[The Chair, Conservative, Tom Lukiwski]

Thank you very much.

We'll now start our second round of seven minutes.

Madam Ratansi.

[Yasmin Ratansi, Liberal, Don Valley East, ON]

Thank you all for being here, and thank you for sitting for an hour and being grilled.

You must have read the blues from the past two days on the two meetings we've had. Throughout, the common theme was that the act protects the disclosure rather than the whistle-blower. We were even told that the act is more of a paper shield than a metal shield.

One of the whistle-blowers came to us, and talked about his experience. He was not given enough information about asbestos when he was contracted out, and I'm sure you have heard about Mr. Garrett. Despite his attempt to protect the public from exposure, and despite the fact that his employees have been exposed to asbestos, he has gone through a wringer, and he has not been protected.

You were the deputy commissioner, and then he came before you as a Public Service Integrity Commissioner. Could you explain why we are hounding a whistle-blower who's trying to protect the interests of the public?

[Joe Friday]

I'll do my best.

I was not the decision-maker for Mr. Garrett's file when the decision was made. I certainly understand that Mr. Garrett has endured a difficult situation, a situation from my understanding that has multiple components. There were contract issues as well as occupational health and safety concerns that both fall under the Canada Labour Code and provincial legislation, and the B.C. Workers Compensation Act.

My understanding, from those who have worked directly on the file when it was being decided by the previous commissioner, and from my own involvement, was that Mr. Garrett pursued various recourses to deal with these issues, one of which was a disclosure to our office.

We analyzed it, we carried out an investigation, and the results of our investigation were that the allegation of wrongdoing as presented was unfounded. Those findings were consistent with the findings of a provincial body called WorkSafeBC, and also consistent with an investigation that was carried out under the Canada Labour Code.

These issues had been looked at by other bodies, and that was part of the evidence in our investigation.

[Yasmin Ratansi, Liberal, Don Valley East, ON]

I'm not here acting as a prosecutor, but I am really trying to understand that if a whistle-blower comes, and claims that very important information was withheld—because the information about asbestos was withheld from him—and that if he had known that information, he would never have taken the contract.

So here is this person, an ordinary Canadian, who is trying to do a job. He gets a contract, and then you tell him that this law applied and that law applied. The poor man has no idea what to do, and now the Justice Department is after his blood.

How do we ensure that this culture of intimidation...There was one very interesting phrase utilized by one of the whistle-blowers, and that was that the big guns come to extinguish you, you the small person. I want to ensure, that in the public interest, we are letting the public know that they can report wrongdoing without being persecuted, and how do we do that?

[Joe Friday]

That, I assure you, is my goal and my role as commissioner. Whether or not we can do that through one piece of legislation, whether we do that through larger cultural change, whether or not we do that through increased communication, information, awareness, sensitivity training, a different organizational culture, it's a very daunting challenge, but one that we have certainly identified as recently as this week with our research paper.

Getting our legislation as sharply focused as possible is one important contribution to that, but it's a larger organizational or cultural issue that we are facing with this legislation being an important focal point of that.

[Yasmin Ratansi, Liberal, Don Valley East, ON]

The other whistle-blower came to us, and said there's gag order on her. Where does the gag order come from?

[Brian Radford]

We're not bound by gag orders, so if there is a matter that is ongoing within a department and the deputy minister—

[Yasmin Ratansi, Liberal, Don Valley East, ON]

Why is she subjected to a gag order, not you?

She's a whistle-blower who was told she could not say anything and therefore she came before our committee. She was not supposed to report anything.

[Joe Friday]

She could come to us.

[Yasmin Ratansi, Liberal, Don Valley East, ON]

I think she did, but maybe to the previous commissioner.

[Joe Friday]

She did not come to us, ever.

[Yasmin Ratansi, Liberal, Don Valley East, ON]

She never did?

[Joe Friday]

No, she chose the courts instead.

I don't think when Ms. Gualtieri made her...that our office even existed at that time.

[Brian Radford]

No.

[Yasmin Ratansi, Liberal, Don Valley East, ON]

Okay, fair enough.

Let's go to this next stage then. Some of the suggestions were that we have to educate the public, that if they see wrongdoing they should be able to talk about it.

[Joe Friday]

Absolutely.

[Yasmin Ratansi, Liberal, Don Valley East, ON]

How do we do that? Have you started any education process?