Silenced Out

Saskatchewan’s new Public Interest Disclosure Act is meant to protect whistleblowers from job-related reprisals, but will also bar public sector employees from bringing concerns about suspected wrongdoings to the media. Are these “protections” just another way to keep a lid on potentially embarrassing government leaks?

Right Channel

Whistleblowers from across the country have long complained of harassment from employers and supervisors – vacations cancelled, promotions denied, unjust dismissals. They can also face legal penalties.

On May 24, 2011, Brian Skakun, a city councillor in Prince George, British Columbia, was convicted under the province’s privacy laws of leaking to the Canadian Broadcasting Corporation a confidential report about workplace harassment in a local RCMP detachment.

Skakun claimed he was protected under the so-called “whistleblower defence,” but the provincial court disagreed. The presiding judge ruled that the councillor had failed to take his concerns “to the attention of the appropriate authorities” and had not exhausted all internal recourse available to him prior to disclosing the confidential information. Not only did the court rule against Skakun, it found him guilty under British Columbia’s privacy laws and imposed a $750 penalty.

While whistleblowers may have a legal right to report wrongdoings, including imminent health and safety threats or environmental crimes, to a “lawful authority,” going public is rarely, if ever, permitted. If one blows the whistle, it better be in the right person’s ear.

A growing number of Canadian jurisdictions – including the federal government, most Atlantic provinces, Ontario, Manitoba and now Saskatchewan – have offered government employees, Crown corporations staff and all other public servants an alternative route to air their concerns.

On September 21, 2011, Saskatchewan’s Public Interest Disclosure Act (PIDA) came into effect to “facilitate [the] disclosure and investigation of wrongdoing, and strengthen protection for employees in the public sector,” June Draude, minister responsible for the Public Service Commission and sponsor of the legislation, says in a statement.

Employees can report wrongdoing to either a public interest disclosure commissioner or a designated official in their own agency. Government officials have emphasized that whoever is appointed will be an independent officer of the legislature – much like the province’s ombudsman or the children’s advocate. The legislation will also protect whistleblowers from retaliation. Authorities claim these provisions increase transparency and government accountability.

“The vast majority of public service employees are honest, hard-working and dedicated. We don’t anticipate a significant number of disclosures,” says Draude. “However, if staff believe something is wrong,” she adds, “the act provides a process they can follow to make disclosures and [receive]protection from reprisal for those disclosures.”

But critics charge that the new law is just another way to keep a lid on leaks. The legislation also raises a number of concerns: Would safety malpractices, for example, brought to the attention of the commissioner or the designated officer be addressed and resolved promptly? Or does the internal disclosure resolution process simply represent another layer of bureaucracy with which workers with a message have to contend? How can workers be sure that the designated official within the organization is impartial? And what is the role of the Ministry of Labour Relations and Workplace Safety if a work-related safety contravention is brought to the commissioner’s attention?

Different View

Not everybody agrees that the legislation will live up to its purported purpose. “We didn’t ask for this legislation and we really don’t see any need for it,” says Juliana Saxberg, director of legal affairs for the Saskatchewan Government and General Employees’ Union (SGEU) in Regina. “We think the legislation is actually intended to silence our members and stop them [from] going to the media, the opposition or even their union with complaints about misconduct,” Saxberg charges.

She points out that effective whistleblower protections are already in place in both Saskatchewan’s Labour Standards Act and collective bargaining agreements with SGEU members. The union represents more than 22,000 members in the public service, various Crown corporations, educational institutions, health care and community service agencies. While the union was notified of the coming legislation, “no meaningful consultations were held,” says Saxberg.

“These statutory reforms are generally restricted to unlawful conduct and only authorize the disclosure of such conduct to a lawful authority,” says Daniel Michaluk, a partner with Hicks Morley in Toronto, who specializes in legal issues revolving around information management, privacy and regulatory defence. “Does the legislation allow that employee to take his or her story to the media? Absolutely not.”  

The recent trend in legislation has been to clarify “to what extent employers can demand employees report their concerns internally first,” Michaluk says. While a number of provinces have enacted whistleblower legislation, the federal government set the bar nationally with amendments to the Criminal Code of Canada that were adopted in 2004. Section 425.1 of the Code forbids an employer from taking any retaliatory measure against an employee for reporting to authorities a suspected wrongdoing committed by an employer.

The section “is very broadly worded,” Michaluk explains, “and provides the ultimate reason why employers are prohibited from imposing sanctions against employees who report wrongdoing to a lawful authority.”

The changes were, in part, Ottawa’s response to some high-profile cases of corporate scandal and managerial malfeasance – for example, Enron in the private sector and the Quebec sponsorship scandal in the public sector. The cases emerged from a growing perception that the internal responsibility system for resolving wrongdoing could, on occasion, fail.

Despite these protections, “an employee should be very, very cautious before going to the media,” Michaluk advises. “Such disclosure is often going to be construed as a breach of duty and misconduct that could result in that employee being disciplined or even discharged.”

Wrong Defined

Many of the traditional concerns of whistleblowers – such as government waste or inefficiency, managerial ineptitude, political interference or failure to meet an agency’s mandate – are not covered by the definition of “wrongdoing” in Section 3 of Saskatchewan’s PIDA.

Public servants are protected from reprisal only in connection with any written disclosure that they may make about a contravention of a statute or regulation; an act or omission that creates a substantial and specific danger to the environment or to the life, health or safety of persons; gross mismanagement of public funds or a public asset; or knowingly directing or counselling a person to commit one of these wrongdoings.

That puts workplace safety contraventions – such as flouting safe work procedures, workers not wearing or being provided personal protective equipment and new employees put at risk because of a lack of supervision or training – squarely within the jurisprudence of PIDA.

Draude argues that the scope of PIDA is far broader than the protections offered under Saskatchewan’s Labour Standards Act.  “PIDA creates a higher standard for the public service because employees in the public service are guardians of the public trust, and are responsible for public policies, programs and funding,” the minister says.

Rather than protecting whistleblowers and encouraging transparency, “this is simply about controlling information,” says Kevin Yates, a New Democrat MLA for the con
stituency of Regina Dewdney. “Under PIDA, public servants are not allowed to disclose anything without going through government channels first. It really limits what they can say publicly.” Yates should know. Before serving in government, he worked in the public service, including 10 years as an elected official and negotiator for SGEU.

While private sector workers may owe a degree of loyalty to their employer, “the public service works for the people of Saskatchewan, not for whatever government happens to be in power,” Yates argues. “There needs to be an open and transparent process that lets them bring forward complaints of wrongdoing without fear. PIDA does not do that.”

Ian Bron, managing director of Canadians for Accountability (C4A), an Ottawa-based grassroots organization of public and private sector whistleblowers, contends that “there’s a battle of cultures going on between those who want to bring problems out into the open [through disclosure legislation] and those who want to use the loopholes in those laws to cover up wrongdoing.”

While it is heartening that a number of provinces are adopting whistleblower protections for the public sector, “there is little legal protection for private sector whistleblowers in much of Canada,” Bron argues. The exceptions are the federal criminal code and some protections available under occupational health and safety and environmental legislation, he says.

While PIDA defines the parameters in which whistleblowers can operate, it does not protect them in every circumstance. Under the new rules, whistleblowers must submit any disclosures of wrongdoing to either the new office of the public interest disclosure commissioner or a designated official within their own agency or institution.

Saxberg says this is a “chilling” provision that could be used against public servants who go outside the formal procedures set out in the act. “Our experience is that members have definitely been fired for blowing the whistle on their employers,” she says. “We are not convinced the legislation allows adequate protection against retaliation.”

Does this mean the end of the brown manila envelope slipped over the transom, or at least the modern electronic equivalent? Earlier this year, Draude told the legislative committee, which was reviewing the draft legislation, that the day of the anonymous leak is over. “If someone feels strongly about an issue, then I would think they would be willing to stand up and say this is a concern.”

Draude adds there is nothing in the legislation that prevents whistleblowers from going to their union, the police, the fire department, an oh&s officer or their lawyers – especially if there is an urgent safety concern.  But “to ensure protection against reprisal under the act, employees must disclose [in writing] under the act.”

If a public servant disregards procedures and releases information about wrongdoing to the media, “they and their actions would not be subject to this legislation, and any provisions or protections in this act would not apply,” Draude says.

In short, whistleblowers who go outside the official government channels do so at their own risk.

Broad Powers

While Saskatchewan’s yet-to-be-appointed disclosure commissioner will have broad discretionary powers to take “any steps” deemed appropriate to help resolve a matter, there is nothing that requires him or her to use them.

An independent and crusading commissioner could opt to pursue almost every complaint received, or could “pull a Ouimet” and follow the footsteps of the former federal Public Sector Integrity Commissioner, Christiane Ouimet, who dismissed without investigation all but seven of the more than 200 complaints registered by whistleblowers with her office. During her three years in office, none of her investigations produced any recommendations or found any evidence of reprisals against whistleblowers.

Section 16(1) of PIDA sets out the reasons a commissioner can halt an investigation. The commissioner might determine “too much time has elapsed,” that a complaint is “frivolous or vexatious,” or even that the matter arose from “a balanced and informed decision-making process on a public policy or operational issue.”

The commissioner could also opt to refer a disclosure to the provincial auditor, let it be addressed as per the procedures of a collective or employment agreement, or even kick it back to the designated officer in the originating institution.

In that case, “the corrective measures are determined 100 per cent by the department where the problem originated,” Yates explains. Without public disclosure – and the public pressure such disclosure generates – “there’s no guarantee that the department will do the right thing.”

While C4A’s Ian Bron acknowledges “there are some fairly legitimate reasons for trying to solve problems internally without airing all dirty laundry in public,” he contends these internal dispute mechanisms have, all too often, been misused, citing Ouimet as an example. “When complainants are forced to go through a single internal avenue, like an integrity commissioner, it usually doesn’t take long for management to figure out a way to make it a very dangerous route, indeed.”

Bron calls for a wider array of disclosure options that would permit a public sector whistleblower the discretion of working internally, through a commissioner, or going outside to an auditor general, a member of Saskatchewan’s legislative assembly or a legislative committee with the mandate of vetting disclosures of wrongdoing. 

“There is a lot of suspicion about confidentiality and who will be handling these disclosures,” SGEU’s Juliana Saxberg says. “Any commissioner appointed by the government must be unbiased, enjoy the confidence of the public service and not be ‘sandwiched’ to the current administration,” she adds.

There are also concerns surrounding the absence of deadlines for processing a disclosure or concluding an investigation. There is no requirement that the original complainant even receives a copy of the final report.

For its part, the general public will have to wait at least a year – for the commissioner and the prescribed institutions to release their annual reports – to learn the disposition of any disclosures. But there will be no substantive public disclosure of a complaint if an investigation was not conducted, or if there was no finding of wrongdoing.

Yates argues that there is no meaningful public disclosure or transparency if one has to wait a year for the commissioner’s annual report. “The damage [is] already done.”

If the data from other provinces is anything to go by, the commissioner’s office in Saskatchewan is not likely to be looking at big numbers. In 2009, Newfoundland and Labrador’s Office of the Citizens’ Representative completed one whistleblowing investigation and dealt with two additional requests for information. In 2010, the Manitoba Ombudsman opened eight new cases, with one carried over from the previous year. And in 2009-2010, the Nova Scotia Ombudsman, which had more disclosure investigations than any other jurisdiction in Canada, conducted 23 assessment reviews, commenced five investigations and concluded just one.

Moving Forward

To date, each prescribed institution under PIDA has appointed its designated officer – unless they decided to opt out and pass this responsibility over to the commissioner – and are working to implement the act and educate their staff about their statutory rights and obligations. In addition, two sets of procedures to handle and review disclosures have been developed: one for the public service and other organizations, and the other for the province’s commercial Crown corporations.

Ongoing training will be offered to designated officers and more information posted on a central website. Once the commissioner is appointed, the Public Service Commission will work with the commissioner’s office to develop a communications s
trategy so that employees are aware of how to contact and work with the commissioner, if they so desire.

For many of the province’s large Crown corporations, compliance with the new whistleblower requirements is unlikely to pose a major challenge, as their existing internal responsibility mechanisms already duplicate many of PIDA’s regulatory requirements.

For example, SaskTel established a whistleblowing program for its employees through a third-party vendor in 2008. Beyond wrongdoing as defined by PIDA, SaskTel’s program can address complaints about immoral or unethical conduct, oh&s and environmental concerns, as well as breaches of the organization’s code of business conduct. To prevent retaliation and reprisals, the program is “100 per cent anonymous,” says Andy Tate, SaskTel’s communications manager.

SaskTel has also established an intranet site with information about both the third-party whistleblowing service and  PIDA. In addition, employees receive e-mails and quarterly reminders from management.

“This is very new legislation for Saskatchewan,” Draude says. “As we gain experience with this act, it is possible that future considerations may be given to expansion.” That could include allowing private sector employees to register examples of wrongdoing with the commissioner.

Loyalty Card

“Going public is always the measure of last resort,” says Michaluk. He says oh&s law and principles of good corporate governance encourage complaints about possible misconduct and wrongdoing to be raised internally first. This “allows employers to address complaints and improve conditions before they are reported to the authorities, or to the media, or directly to the public.”

However, there are exceptions. Employees can contact authorities if an organization’s internal responsibility system has broken down or proven ineffective; if there is evidence of criminality; or if a situation poses imminent harm to one or more individuals or the environment.  

For example, if an employer insists a worker works on scaffolding, but does not supply the necessary fall protection equipment, the worker has the right to refuse and report the situation to an oh&s officer.

“There are strong policy reasons for compelling concerned employees to report ‘up the ladder,’ but it’s always been about balancing interests,” Michaluk suggests. “Common law imposes a basic duty of loyalty and fidelity for ensuring problems be addressed internally, while legislated whistleblower protections preclude employers from preventing the external flow of information in certain situations.”

The idea of citing company loyalty to curb whistleblowing is one of Bron’s pet peeves. “The person who is being disloyal is the person who does something bad, not the person who blows the whistle,” he says. “Using ‘loyalty’ as a way to silence your critics is incredibly self-serving.”

Perhaps, loyalty is largely a matter of perspective, depending through which side of the lens one is looking. “Most whistleblowers are dedicated, competent employees, but their loyalty is not restricted to a particular manager or supervisor,” Bron argues. “The world is shrinking. The idea you should limit your loyalty to a single company is out of touch with the times and, frankly, absurd.” (Follow us on Twitter @OHSCanada)

William M. Glenn is associate editor of hazardous substances for ohs canada.

Sidebars:

Sparking a Witchhunt

During a debate on a private member’s bill proposing a Public Interest Disclosure Act, Ron Brown, Prince Edward Island’s environment, energy and forestry minister, insisted additional legislation was both unnecessary and counter-productive.

“This bill is making civil servants look bad. You’re insinuating in your bill that wrongdoing is going on in the civil service, and I can assure you no wrongdoing’s going on in the civil service the 15 years I worked there,” Brown said.

The minister also complained that whistleblower protection would spark a “witch hunt” in the public service. “If you don’t do what I’m telling you to do, I’ll file a complaint against you, and I can whistleblow on you because… I’m protected,” he said.

After a fractious, two-hour debate in the Committee of the Whole, PEI Bill 100 died on April 8, 2010.

Toothless Watchdog

For whistleblower protections to be effective, the public service and the public in general must be confident that the person handling the resulting disclosures of wrongdoing is impartial, independent and rigorous in pursuing investigations. Complaints about politically motivated bias and the behaviour of Christiane Ouimet, the first Public Sector Integrity Commissioner of Canada (PSIC), forced her out of office just three years into her seven-year term.

A 2010 special report by the federal auditor general (AG) found that only seven of the 228 files received by PSIC resulted in formal investigations, no findings of wrongdoing were made and not a single reprisal complaint was forwarded to the Public Servants Disclosure Protection Tribunal for arbitration. The AG found that PSIC had failed to finalize and implement formal procedures for conducting investigations.

Commission staff had also raised concerns about Ouimet’s reluctance to investigate wrongdoing. The commissioner countered that those statistical results were “normal” for a new organization and that the federal Public Servants Disclosure Protection Act gives her “a large amount of discretion” in deciding whether or not to launch formal investigations.

In its own review of some 86 closed files, the AG determined that PSIC’s refusal to investigate and its dismissal of disclosures “were not supported by the nature of the work performed, the documentation on file or both.” The AG also concluded that Ouimet had behaved in an inappropriate and unprofessional manner toward her employees and had even engaged in retaliatory action against at least one employee who had complained about that behaviour.

Following Ouimet’s resignation on October 20, 2010, the new interim commissioner launched a third-party review of all the closed case files. The review identified “issues” in 70 of those files, which were then assigned to two special advisors to decide the appropriate corrective action to be taken. As of September 2011, PSIC has 81 active files, in addition to those backlogged cases being reassessed.