Government Operations Committee on March 23rd, 2017

[Joe Friday]

Yes, and again to go back to the proposals that we tabled in February, the reverse onus provision to me would provide our office with the ability to be much more flexible and much less...I don't want to say thorough, but perhaps less formal in the work we do. I would hope that if we set the parameters for that work in the presence of a reverse onus, the Federal Court of Appeal would not be looking at the fullness of an investigation, because we would be doing more of a screening in order to get that person to the tribunal much faster than they are now.

[Erin Weir, NDP, Regina—Lewvan, SK]

If someone goes through a grievance process and then it's completed, is the commissioner able to look at it after that?

[Brian Radford]

Yes, we can. That falls under the discretion of the commissioner. The commissioner can determine whether it has been adequately dealt with by the other body. We can obtain a copy of the decision; we can have discussions with the complainant.

It falls under the discretion of the commissioner in those types of situations.

[Joe Friday]

That's where we have the Therrien case in abeyance.

We'll wait for that decision to see if there is any action we are able to take following the adjudication of her grievance.

[The Chair, Conservative, Tom Lukiwski]

Thank you.

Mr. Whalen, for seven minutes.

[Nick Whalen, Liberal, St. John's East, NL]

Thank you again for coming back to the committee. Obviously, the testimony we've heard this week shines a new light on the usefulness of the current legislation and on international best practices.

We received a very interesting document from Global Watchdog. It lists a number of international best practices, and maybe it comes down to whether the act really starts from the right starting point.

The first is the view that it's free expression rights that are what need to be protected. It's a human right that a worker should not have to work in a place where wrongdoing is occurring, or that they merely have a reasonable suspicion that wrongdoing is occurring and not be given the right to freely express their concerns about the wrongdoing.

How do any of your suggestions for a change in the act protect the free expression right of employees to voice their concerns in whatever way they choose about wrongdoing that is occurring, or to even explore with their colleagues and co-workers that they may suspect wrongdoing is occurring?

[Joe Friday]

One of the changes we proposed, for example, was to actually break down that structure of who you can speak to. Right now the act says that you come to your manager, your senior officer, or you come to me.

Our first proposal is that you can make a disclosure to anybody in the chain of command, all the way up to the chief executive.

[Nick Whalen, Liberal, St. John's East, NL]

What about colleagues? We've heard from people who say that it's not really about making disclosures to a particular person; you should eliminate the criteria altogether.

Your suggestion regarding expanding the definition of supervisor is against international best practice.

[Joe Friday]

I think the principle that a whistle-blower has as many options as possible is an important one. I also think having access to someone with authority to address the issue is part of the structure.

I would point out that in our—

[Nick Whalen, Liberal, St. John's East, NL]

Sorry, Mr. Friday, when someone only has a reasonable apprehension that wrongdoing has occurred, how can they safely explore the issues without being able to go to somebody who's not necessarily a supervisor? Then it ceases to be a protected disclosure, and that could be where the reprisals start to happen, because, “Oh, this person is digging. We have to cut them off at the knees.”

Your act does not protect it, and none of your recommendations address that point.

[Joe Friday]

I don't know if a piece of legislation could actually address that fully.

When we are talking about cultural change, for example, the paper we just produced on the fear of reprisal I think highlights some of those very issues.

[Nick Whalen, Liberal, St. John's East, NL]

Sure, and in that paper I note that you start at the second step. The premise of the paper is that there are three options for the potential whistle-blowers—to do nothing, stay silent, or whistle-blow—when in fact that's not where the analysis begins.

The whole point of international best practice is recognizing that it's when there's a reasonable apprehension that there's wrongdoing occurring that the worker needs to start exploring those options and investigating and discussing. That's when harmful disclosures to them are occurring. Your suggestions don't address it.

Let me move on to the next point about good faith. Can we go farther than just removing good faith? Can we expand the protected disclosures to the notion that if someone has an honestly held belief that there's wrongdoing, that would be sufficient to protect their free speech?

This is your third suggestion.

[Joe Friday]

Yes.

I feel very strongly about the removal of the good faith requirement.

[Nick Whalen, Liberal, St. John's East, NL]

Yes, and I'm saying that it doesn't go far enough. It doesn't meet the international best practice.

[Joe Friday]

I'm not sure what that international best practice looks like in terms of how it would appear in legislation.

Are you talking about the change to the legislation, or does this go broader, to the organizational culture?

[Nick Whalen, Liberal, St. John's East, NL]

We're speaking today about the fact of whether we need to start fresh in this act or whether we can use this act. It seems to me that your suggestions don't bring us to the level that the international best practices would suggest. If they don't, then that's the suggestion to me that we do, in fact, need to start again.

Let me go to a next point on the burden of proof.

We heard from the member from Australia who said this notion of trying to prove reprisal is ridiculous; it's almost impossible. What we need is to provide a duty on employers to protect and support employees who are investigating whether a wrongdoing has occurred. It may not even have been wrongdoing; they may be punished because they just looked into what the rules were. Why is that not one of your suggestions? That's very clearly international best practice. That reprisal protection is useless if there's no duty to protect and support whistle-blowers.

[Joe Friday]

The current act does speak in terms of statutory prohibition on reprisal. It's both a criminal offence as well as a—

[Nick Whalen, Liberal, St. John's East, NL]

But this is the point, that reprisal is already a step too far. How can you have not spoken in any of your recommendations about the need for duty to protect and support people who voice—and I can't use the word whistle-blower, because our definition of “whistle-blower” doesn't go far enough—their concerns when they have an honestly held belief that there is wrongdoing?

Why aren't we actually providing a duty to protect and support employees, not simply protect them against retaliation?

[Joe Friday]

The act is based on a responsive model.

[Nick Whalen, Liberal, St. John's East, NL]

Are you saying that our act does need to be replaced?

[Joe Friday]

I think it needs to be reviewed and amended, certainly.

[Nick Whalen, Liberal, St. John's East, NL]

When we move on to reliable confidentiality protection, I note that you have put some things in here. I think at least in that respect, your suggested changes to the act do marry up with international best practices on the confidentiality side.

On shielding whistle-blower rights from gag orders, when I look at what the international best practice says about this, they're really looking at the dichotomy between the employer and the employee. Something I don't see happening with any of the documents is the public interest. I'd like to know who the third person is at the table representing the public interest. We're talking about public bodies and whether there is wrongdoing occurring. I have a lot of apprehension about closed-door settlement in mediation. I feel it does need to go to tribunal, and we do need to have a public review. I don't feel comfortable in the context where there are three sides—the employer, the employee, and the public interest of the institutions—being secure and honest and performing to the best of their ability having these closed-door settlements. I don't think it's an appropriate mechanism for mediation. Maybe you can speak to that.

[The Chair, Conservative, Tom Lukiwski]

We're going to have to get you to speak to that at a later intervention, perhaps with one of Mr. Whalen's colleagues or perhaps the next time Mr. Whalen has a direct question for you. We have to move on, unfortunately.

We'll go to Mr. Clarke, for five minutes.

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

Nick, if you want to continue, go ahead.

[Nick Whalen, Liberal, St. John's East, NL]

I'll just repeat the question.