scrap this sorry piece of legal window-dressing and give us a law that
will truly protect honest employees(honest people, honest organiations
), so that they can protect the public interest. How can any party
claim to be serious about transparency and accountability as long as
they deny this fundamental right to Canadians ? The time to act is
Good food for thought - bad things happen when good people let it
happen -this worth a read .
Why Canada's federal whistleblower protection law needs to be rewritten
David Hutton – The Hill Times, January 10, 2010
In the wake of the Auditor General's startling revelations regarding
misconduct by the government's whistleblower watchdog, there's a
tendency to attribute all of the problems to former public sector
integrity commissioner Christiane Ouimet's actions.
The reality is that deeply flawed legislation – which experts
confidently predicted would fail – gave Ouimet the discretion to turn
away virtually all whistleblowers, denying them any possible remedy
and effectively providing cover for dozens of accused wrongdoers.
Even a committed and proactive commissioner will find his or her hands
tied by the same faulty law: this system simply cannot be made to work
without major changes.
It's impossible to grasp what happened here without understanding the
context: the almost universal hostility that exists towards
whistleblowers by employers, including government departments. The
interests of those in power are nearly always threatened when
allegations of wrongdoing surface – especially if these are true! This
hostile attitude is evident in the way that employers invariably
portray whistleblowers as irresponsible, untrustworthy,
attention-seekers, mentally unbalanced or motivated by personal
vendettas – although research consistently finds that they are the
most loyal, the most diligent high-performers. These distortions are
all part of a strategy designed to silence, crush, discredit and,
above all, to punish truth-tellers for 'disloyalty'.
This attitude is also evident in the extreme lengths that institutions
will go to in order to crush and silence truth-tellers. When FAIR's
founder, Joanna Gualtieri, sued her bosses for harassment after she
warned the department about massive waste and extravagance in its
accommodations for diplomats abroad, government lawyers dragged out
her case for 12 years, forcing her to answer 10,576 questions during
pre-trial discoveries – only to settle in the end, virtually on the
courthouse steps. After wasting millions of taxpayers dollars on this
obscene abuse of legal process, the government finally gagged her: she
apparently cannot discuss any aspect of her case or her allegations.
And this is not an isolated example.
This institutional hostility is also evident in jurisdictions around
the world, where laws drafted to protect honest employees have been
systematically sabotaged by those in power: by gutting legislation so
that it has no teeth; by starving enforcement agencies of resources;
and by putting in charge people who can be relied on to protect the
status quo. Many would consider Ouimet to be just such a choice.
So, although many ordinary Canadians may be shocked and puzzled by the
failure of this system, informed observers and experts in the field
are not surprised: given the background, this is pretty much what we
expected to happen. Canadian politicians have not yet become serious
about protecting whistleblowers, and will not do so until the public
demands protection for honest conduct in the workplace.
What's wrong with the law we have today? There are so many problems
that it's difficult to know where to start. Just three examples will
have to suffice, although these only scratch the surface.
1) Most real-life cases can (or must) be refused on jurisdictional reasons
The whistleblower law allows (and in many cases requires) the public
sector integrity commissioner (PSIC) to refuse to deal with a
complaint that is being dealt with, has been dealt with, or could be
dealt with by some other process.
For example, suppose that the whistleblower has already launched a
grievance against apparent reprisals by bosses and finds that it is
going badly. PSIC will refuse to deal with this person's complaint
because there is another process (the grievance) under way. Once the
grievance is settled, PSIC will again refuse to deal with the
complaint because it has already been dealt with by another process.
Suppose that the bosses accused of wrongdoing were involved in
settling the grievance? That doesn't matter – because the grievance
process provides a comprehensive remedy, according to legal
precedents. What if the whistleblower didn't launch a grievance? PSIC
can still refuse to deal with the case on the grounds that it would be
better dealt with by some other process – like a grievance.
It's a true Catch-22 situation. Since the law allows (or even
requires) PSIC to defer to any other jurisdiction, there's virtually
nothing left that it can or must deal with: it can turn everyone away.
This is bizarre, especially when you consider that grievances,
internal departmental investigations and the like almost never work in
whistleblower cases – because bosses can so easily manipulate these
and turn them into reprisals. That's supposedly the very reason why
this law was created – so that there is somewhere safe for honest
employees to go when all other official channels have failed.
2) The Commissioner cannot pursue investigations that lead into the
It is noteworthy that the auditor general, after launching her
investigations into PSIC under the whistleblower legislation (thus
assuming the powers of the integrity commissioner) abandoned this
approach within weeks and continued her investigation under the powers
of the Auditor General Act. She did this mainly because the
whistleblower law did not give her the authority to investigate any
private sector involvement. Being blocked from the private sector
would seriously impede her investigation even if the private sector
participants had done nothing wrong but were merely witnesses.
Why would the private sector be excluded from any investigation where
public resources are possibly being misused? Probably the majority of
government whistleblowers who come to us allege scams that involve the
private sector in some way: contracting fraud and manipulation; grants
handed out to phony companies that do no real work; consultants and
auditors hired to write phony reports exonerating wrongdoers… the
possibilities are endless. If we reflect upon the major scandals that
have become public in the past few decades – the tainted blood
scandal, the gun registry overrun, the sponsorship scandal – every one
has had significant private sector involvement.
In an era where public-private partnerships of all sorts are in vogue,
when much of the work of government is being done through contractors,
this is a gaping omission in the law.
3) The Tribunal (that never sat) will probably never protect anyone
The law does not give PSIC any power to protect whistleblowers
directly: the commissioner can only investigate complaints of
reprisal, and if these are founded, refer the case to a tribunal. This
is a special-purpose administrative body, a kind of pseudo court that
adjudicates complaints of reprisal by hearing evidence from both
Out of the 55 complaints of reprisal submitted over three years, only
a handful of were investigated and not a single one was referred to
the Tribunal. So this body, with a small full time staff and an annual
budget of $1.8 million sat idle, waiting, waiting… and no
whistleblower even had the opportunity to plead for protection.
Unfortunately even if any cases had been referred to it, we expect the
tribunal to be a kangaroo court, nearly always finding against the
whistleblower – because of the way the law is written.
The most serious obstacle is that the law puts the onus on the
whistleblower to prove that any adverse actions taken were reprisals
for a disclosure of wrongdoing. In practice this is usually impossible
for an employee to prove since bosses engaged in such harassment
generally don't admit to it, and proof is hard to obtain. However,
without such proof the employee has no recourse, no possible remedy,
and no defence against further retaliation.
The solution adopted in more progressive jurisdictions, is a reverse
onus provision: once the employee has proven that there is a
connection between the whistleblowing and the adverse action (e.g. a
short time frame between the whistleblowing and a demotion) the burden
shifts to the employer to prove that these actions were taken for good
reasons other than retaliation. Even with this reverse onus, proving
reprisal is not a slam dunk for the whistleblower – only about 20
percent prevail – but at least they have a chance.
There is also little pressure on this tribunal to perform: it can hold
its hearings in secret, it can take as long as it likes, and it does
not even have to file its decisions with the Federal Court. The only
avenue of appeal is to a judicial review. No matter how questionable
the Tribunal's actions or decisions the whistleblower cannot gain
access to the normal court system, with court reporters, rules of
procedure and judges who can be impartial because their tenure is
The seriousness of this problem can be seen by examining U.S.A.
experience of a similar arrangement (a special purpose administrative
body, no access or right of appeal to the courts, and no reverse onus
provision): of the first 2,000 whistleblowers who submitted complaints
of reprisal, only four prevailed.
As a final insult, the whistleblower is given no legal assistance to
make their case before the tribunal – only $1,500 for pre-tribunal
consultations (if the commissioner authorizes this). Considering that
those accused of wrongdoing will certainly have their hefty legal
bills paid by Treasury Board, it's difficult to imagine a more uneven
These three examples address just a few of the problems build into
this law: there are many others just as serious. The bottom line is
that it creates a regime that is littered with deadly traps and
loopholes, shrouded in impenetrable and unnecessary secrecy, and
stacked against the whistleblower, so that few (if any) can ever
But perhaps the most serious failing lies in the basic concept:
creating a complete quasi-legal system in a bubble with a monopoly
over whistleblower cases. This system is hermetically sealed off from
the outside world, from the proper legal system, from access to
information, from the media. Rather than giving whistleblowers more
choices and more control on their dangerous journey, it forces them
into a secretive bureaucratic process that is little more than an
elaborate trap with multiple jaws. Can it be fixed without starting
over? That remains to be seen.
FAIR is in the process of re-writing our four-year old publication
"What's wrong with the PSDPA" to explain in more detail the full scope
of the problems with this law. We are also working with other
organizations such as Canadians for Accountability and the Democracy
Watch-led nationwide Government Ethics Coalition, with the goal of
arriving at a common position regarding what should be done to fix the
problems when Parliament returns at the end of this month.
It's time for politicians of all stripes to do the right thing, to
scrap this sorry piece of legal window-dressing and give us a law that
will truly protect honest employees, so that they can protect the
public interest. How can any party claim to be serious about
transparency and accountability as long as they deny this fundamental
right to Canadian employees? The time to act is now.
FAIR (Federal Accountability Initiative for Reform)
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