Enhancing Whistleblower Protection

Problem to be addressed: Canada’s current legal framework for
whistleblowing is outdated and out of step with internationally recognized
best practices. The most serious deficiencies are 1) lack of protection for
public sector whistleblowers, either at a federal or provincial level, and 2)
an almost complete lack of coverage of the private sector.

Most of the current legislation focuses on procedures for handling
allegations of wrongdoing, rather than on protection for the whistleblowers.
At the federal level, the Public Servants Disclosure Protection Act (PSDPA)
created two new agencies: (1) the Office of the Public Sector Integrity
Commissioner and (2) the Public Servants Disclosure Protection Tribunal. Only
the Tribunal can provide whistleblowers with a remedy, but access to the
Tribunal is controlled by the Integrity Commissioner. The effectiveness of
this mechanism has been brought into question, as the Commissioner has
referred only seven whistleblowers to the Tribunal, and no case has yet
reached the point where the Tribunal could order a remedy for the
whistleblower.

One example of the shortcomings of the PSDPA is that the onus is on the
whistleblower to prove that adverse actions were intended by the employer as
reprisals: an almost impossible task. Best practice is to reverse the onus by
requiring the employer to prove that adverse actions against the
whistleblower were not reprisals.
Of the six provinces that have whistleblowing laws, only one (Ontario)
provides a mechanism for whistleblowers who have suffered reprisals to seek a
remedy. None of Canada’s whistleblowing laws contains adequate measures for
preventing or halting reprisals in the first place, before the whistleblower
suffers serious harm.

There is virtually no coverage of the private sector in Canadian
whistleblowing laws. The federal law (the PSDPA) does not address private
sector wrongdoing.  For the public sector wrongdoing that it does cover, the
PSDPA does not allow private sector participants to be either investigated or
sanctioned.

There are currently no steps being taken to bring Canadian laws in line with
best practices per Canada’s G20 commitment. The PSDPA, which came into
force in 2007, requires that the President of the Treasury Board conduct a
five year review of the legislation and report on the review to Parliament
and the Senate. Despite this legal obligation, no review has been conducted
to date.

Main Objective: Demonstrate a commitment to creating a strong federal
legislative framework that will enable workers in both the private and public
sectors to speak up about wrongdoing, risk or malpractice without fear of
reprisal; and work with the provinces to provide similar frameworks at a
provincial level.

OGP Challenge Addressed: Improving public integrity, improving public
services, increasing corporate accountability

Verifiable and measurable milestones to fulfill the commitment:

Conduct a formal and independent review of the Public Servants Disclosure
Protection Act, with substantive input from civil society and
internationally-recognized experts, and publicize the recommendations of the
review (August 2017)

Draft and table amendments to existing federal law to afford whistleblower
protection to all cases of wrongdoing involving government resources,
regardless of the employment status of the participants (public or private
sector) (2018).

Launch a public consultation on the development of a federal whistleblower
protection law that covers private sector wrongdoing (2018).

Establish a dialogue with the provincial governments and agencies,
particularly those without whistleblower protection laws, to discuss how to
enhance whistleblower protection in these jurisdictions (2017).