Government Operations Committee on March 23rd, 2017

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

I think, based on the facts now, we can see that the EI process had become a boiler room and that the financial incentives put in place to find bad claims actually created too much incentive and may have created wrongdoing.

I don't necessarily think that would always be the case. Sometimes you need to have incentives put in place to motivate workers. It doesn't always necessarily mean that if you have incentives there is going to be malfeasance.

However, I think there is a reasonable apprehension here. So rather than focus on the specifics of this case, Mr. Yazbeck, when we're talking about disclosures, do we need to broaden the definition of to whom and to where we disclose the information and lower the good faith burden? It would be just whether the documents on their face might cause a reasonable person to believe that something is going wrong and is worth looking into.

[David Yazbeck]

I would agree with that.

I think there is difficulty in relying on the good faith obligation. I'm not condoning bad faith disclosures, but oftentimes people think of good faith as having, for example, a proper motivation. So if somebody is disclosing something because they want to get back at their supervisor, that's going to be bad faith and we don't want to deal with that disclosure. However, it could very well be that the supervisor was engaged in wrongdoing as well. Simply because there's some animus there on behalf of the discloser, that shouldn't disqualify that complaint. I do think we have to be careful with that.

I also think that, historically, in cases where people have gone public and they have been disciplined, the employer has often taken the position that you can't disclose wrongdoing unless you know the allegations to be true, the proof of truth requirement. That's going way too far, because sometimes you don't know and you can't know. Sometimes you just have a suspicion and want somebody to investigate to make sure whether it's true. Frankly, that's the whole role of the commissioner. If somebody has a suspicion, that should be sufficient, as long as it's reasonable and they're not acting in bad faith.

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

Mr. Yazbeck, I saw one of the articles about this particular case. It talked about 3% of claimants improperly applying for EI benefits. Anywhere between 1% and 5% seems to be almost a general rule in society for how likely somebody is to break a rule or a law, so it doesn't seem as though the 3% in the EI program is out of the ordinary.

In your work in whistle-blowing, do you have any concept of what the rate of false allegations might be? Is there any reason to believe that it's higher or lower than other types of bad behaviour?

[David Yazbeck]

I can't really answer that. I believe my clients have been making legitimate disclosures, or at least attempting to. I would imagine it's not far off, because we're dealing with human nature.

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

Even if someone did make an allegation that turned out to be wrong, what is the negative impact on the alleged wrongdoer if they're ultimately shown to be vindicated in the investigation?

[David Yazbeck]

I can see that there could be a personal impact. Investigations such as that are stressful. There would be a period of time where they're suspected of something. If they were to retain their own counsel, there would be a cost associated. So there could be implications there.

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

How often is it that someone needs to retain their own counsel? It seems universal that the departments retain counsel to protect the alleged wrongdoers.

[David Yazbeck]

I've seen it happen.

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

In these allegations, if there is an investigative power on behalf of the department, should it be more a natural justice process where the person who is alleged of the wrongdoing is afforded counsel and the government institution that's investigating the wrongdoing has counsel and then a separate adjudicative body? Is there a problem in our system where we have the investigator and the decision-maker in one body?

[David Yazbeck]

Yes, I agree. That can be a problem.

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

Further along the lines of how we can make this system better, rather than focusing on reprisal, if we focused on a duty to protect and support whistle-blowers and duty to protect and support those who make a disclosure of what they feel reasonably identifies some wrongdoing, would that have helped your clients? Do you think having that opportunity to sue under the tort of failure to live up to a duty to protect and support would be easier than trying to sue to prove reprisal?

[David Yazbeck]

I don't think so. I think that taking up that kind of litigation is going to be costly, can be difficult, and is uncertain. I think a regime that allows a body like the commissioner, or the equivalent of the commissioner, to do investigations of an expert body would be better, as long as it functioned properly and was efficient and objective, etc.

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

You wouldn't see any real difference between having the standard of having to show that someone breached their duty to protect and support the employee versus having to prove that there was a reprisal? That wouldn't make any difference? We heard in evidence earlier this week that the lower standard was more protective of whistle-blowers, the lower standard of someone failing to meet up to their duty to protect and support, versus having to prove reprisal, which is almost never done.

[David Yazbeck]

I'm actually not sure what the standard would be in that other situation. I'm not sure how a court would approach that. Certainly, it would be the civil burden of proof—right?—the balance of probabilities, etc. If you are proving reprisal, it's the same burden of proof. It's a balance of probabilities.

The problem with reprisals is that you start with a proposition that the act in question is legitimate and then you have to prove otherwise, and that puts a heavy burden on the complainant, whereas in the case you're talking about, there's a standard out there that's applicable to the respondent or the defendant. In a way it almost shifts the burden, so to speak, because we're looking at whether they complied with that standard.

When I think it through, I guess in that sense it might be easier. I just think that the nature of reprisal as an insidious, difficult thing in the workplace is uniquely suited to an expert investigator, an expert decision-maker, or an expert tribunal to deal with, as opposed to a court dealing with a more general duty on behalf of somebody vis-à-vis a complainant or employee. I think the need for expertise in this area is crucial. I draw on the human rights jurisprudence for that, because we know that human rights commissions and tribunals have developed an expertise that enables them to identify discrimination and find it.

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

Certainly, Mr. Yazbeck, with only seven cases under their belt, I'm not sure if our own tribunal has developed any material expertise.

[David Yazbeck]

Yes.

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

It sounds like the Court of Appeal has seen just as much.

[The Chair, Conservative, Tom Lukiwski]

Colleagues, I want to do a quick consult with you. We've finished our first round of seven-minute interventions. Are there further questions? We can certainly continue.

[Kelly McCauley, Conservative, Edmonton West, AB]

I have a couple of quick ones.

[The Chair, Conservative, Tom Lukiwski]

All right. We'll go to Mr. McCauley and then to Mr. Ayoub.

Mr. McCauley, you have five minutes.

[Kelly McCauley, Conservative, Edmonton West, AB]

Just to follow up, where did they transfer you to?

[Sylvie Therrien]

To another office in Burnaby. I was in Vancouver. They transferred me to Burnaby.

[Kelly McCauley, Conservative, Edmonton West, AB]

Where were you living at the time? That's a bit of a hike.

[Sylvie Therrien]

I was living in Vancouver. It's not that far.

[Kelly McCauley, Conservative, Edmonton West, AB]

Did they offer that? We've talked about protecting whistle-blowers by moving them to other positions. Did they offer that to you or did they just say, “here, go”? Or was that part of a resolution that they offered you?