In defence of whistleblowers
Most Canadian whistleblowing legislation is ineffective, requiring users to clear a number of hurdles, says an expert.
by Pierre Chauvin
The ongoing impeachment procedures against U.S. President Donald Trump all started with a whistleblower — an employee who believed it was his duty to report potential wrongdoing.
And as Canadians watch the ensuing manhunt to identify said whistleblower, it begs the question: would the situation be much different if it happened here?
Not necessarily, says David Hutton, a whistleblower protection advocate working at the Centre for Free Expression (CFE) at Ryerson University in Toronto, and previously of FAIR — an organization dedicated to counselling whistleblowers facing potential repercussions.
Laws intended to protect public servants across the country do exist, but according to Hutton’s analysis, most of them are ineffective and require whistleblowers to first clear a number of hurdles.
“Canada has the international reputation of being the Titanic [disaster] of whistleblower protection,” he says.
At the federal level, whistleblowers experiencing reprisals can turn to the Public Servants Disclosure Protection Tribunal. But to get there, the Office of the Public Sector Integrity Commissioner has to refer them. And once they start the process, it is up to the whistleblowers to prove that the actions taken against them are reprisals.
“The law stacks the odds against them; it’s very expensive and time-consuming.”
In 12 years, the commissioner has referred seven people to the tribunal and just one managed to get through the entire process — only for the tribunal to rule against the potential whistleblower, according to Hutton.
And the situation isn’t much better for provincial employees, he says.
“A number of the provinces have put in place whistleblower laws but they’re very, very weak… We haven’t studied closely. I don’t think most of them are worth studying.”
Despite the general lack of protection, it is important to educate the general public — including people in management roles — on the benefits of accepting whistleblowers’ reports, says Hutton.
“If you have a substantial organization below you, there’s probably some kind of outright wrongdoing or just dangerous incompetence somewhere,” he says. “Do you want to find out about that in time to do something about it?”
“Whistleblowers are people of conscience trying to do the right thing.”
While federal legislation centres around public servants, private-sector employees can turn to provincial work and safety legislation.
In British Columbia, for example, the Worker Compensation Act makes it illegal “for an employer or union to penalize a worker for raising a health or safety issue at work,” says Craig Fitzsimmons, media relations director for WorkSafeBC.
“If a worker feels this has occurred, they can file a discriminatory action complaint.”
But that complaint process also has its flaws, according to Sheila Moir, OHS director at the B.C. Federation of Labour.
“Unfortunately, rather than conduct a thorough investigation, workers are often forced into a mediation process — an intimidating process for workers who may not have representation.”
The complaint process is run by WorkSafeBC, while the Workers’ Advisers Office (WAO) advocates on behalf of the worker.
WorkSafeBC can order an employer to pay lost wages for reprisals taken against an employee reporting safety concerns, but it also requires the workers to “mitigate [lessen] their losses if the employment relationship has ended.”
Those enforcement mechanisms need to change, according to Moir.
“Currently, workers have no recourse to collect any monies awarded from the employer following a discriminatory action complaint and the board has very little authority to enforce the payment.”
At the CFE, Hutton and his colleagues are working on the launch of a much-needed whistleblower helpline. For now, they haven’t publicized it much while they await being fully staffed, but they do take cases.
“Potentially we can support anyone from any industry and any part of the country,” he says.
“If you’re a federal or a provincial employee and there is a law supposed to protect you, then you need our guidance and help just as much — perhaps more — because those laws are so ineffective and problematic.”
Pierre Chauvin is a freelance writer in Victoria.