2. The Legal Response to Whistleblowing in Canada: Managing Disclosures by the “Up the Ladder” Principle

Sean C. Doyle, “A Purposive Approach to Whistleblower Protection: A Comment on Merk v International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 771” (2007), 44 Alberta Law Review 903, at 903 quoting Terry Morehead Dworkin, “Whistleblowing, MNCs, and Peace” (2002), 35 Vanderbilt Journal of Transnational Law 457 at 461.

ibid.

The ten provinces east to west are Newfoundland and Labrador, Prince Edward Island, Nova Scotia, New Brunswick, Quebec, Ontario, Manitoba, Saskatchewan, Alberta, and British Columbia. The three territories in northern Canada are Nunavut, the Northwest Territories, and the Yukon Territory.

Code civil du Québec, L.Q. 1991, c. 64 (“C.c.Q.”).

LexisNexis Quicklaw separate searches for tribunal and court decisions using the term “whistleblower” and the time period 01 January 2008 to 30 June 2013. Searches conducted on 24 October 2013. Note that the numbers include appeals of the same matter so the number of individual instances of whistleblowing under consideration is less. A search of the Canadian Index to Legal Literature on the same database and for the same time period identified a number of articles on the subject in magazines for the legal profession but not in scholarly journals.

See Ontario Law Reform Commission, Report on Political Activity, Public Comment and Disclosure by Crown Employees (Toronto, Ministry of the Attorney General, 1986) at pp. 32–74; CL Dubin, Q.C. and J Terry, “Whistleblowing Study”: Commissioned by Industry Canada (Industry Canada, Competition Bureau, 20 August 1997) and “Whistleblowing Study: Addendum” (30 September 1997); C Brunelle et M Samson, “La Liberté d’expression au travail et l’obligation de loyauté du salarié: plaidoyer pour un espace critique accru” (2005) 46 Cahiers de Droit 847; I Cantin and JM Cantin, La dénonciation d’actes répréhensibles en milieu de travail ou Whistleblowing (Cowansville, Les Éditions Yvon Blais, 2005); KP Swan, “Whistleblowing – Employee Loyalty and the Right to Criticize: An Arbitrator’s Viewpoint” in W. Kaplan, J. Sack, and M. Gunderson, Labour Arbitration Yearbook 1991 (Vol. II) (Toronto, Butterworths-Lancaster House, 1991) at 191–198; J Carson, “The Need for Whistleblowing Legislation in Canada: A Critical Defence”, paper presented to the Canadian Political Science Association Conference, June 2006 and accessible at the C.P.S.A. website at www.​cpsa-acsp.​ca/​papers-2006/​Carson.​pdf (as at 29 July 2013); The Labour Law Casebook Group, Labour and Employment Law: Cases, Materials, and Commentary, 8th edn (Toronto, Irwin Law, 2011) at 992–94; M Mitchnick and B Etherington, Labour Arbitration in Canada, 2nd edn (Toronto, Lancaster House, 2012) at chapter 12 “Disloyalty and Breach of Trust”, at 271–277.

See I Cantin and JM Cantin, La dénonciation d’actes répréhensibles en milieu de travail ou Whistleblowing (Cowansville, Les Éditions Yvon Blais, 2005).

Wm. Scott & Co. and Canadian Food & Allied Workers, Local P16, 1976 CLB 1780; [1976] B.C.L.R.B.D. No. 98; [1977] 1 C.L.R.B.R. 1; [1976] 2 WLAC 585.

Re Ministry of Attorney General, Corrections Branch and British Columbia Government Employees’ Union (1981) 3 L.A.C. (3d) 140.

ibid. at 162–163.

ibid. at s 28.13.

S.C. 2005, c. 46.

ibid. at ss 5, 8 and 10.

ibid. s 16.

ibid.

ibid. at s 11.

ibid. at s 12.

ibid. at s 15.1.

ibid. at ss 13 and 17.

ibid. at s 39.

ibid. at s 38(3.3)

ibid. at s 19.1.

ibid. at s 20.4.

ibid. at s 20.7.

Civil Service Disclosure of Wrongdoing Regulations, N.S. Reg. 205/2004 pursuant to the Civil Service Act, R.S.N.S. 1989, c 70, s 45.

The Public Interest Disclosure (Whistleblower Protection) Act, C.C.S.M. c P217 (w.e.f 2 April 2007); Public Interest Disclosure Act, S.N.B. 2007, c P-23.005 (w.e.f. 1 July 2008), now S.N.B. 2012, c 112; Public Service of Ontario Act, 2006, S.O. 2006, c 35, Sched. A “Part VI Disclosing and Investigating Wrongdoing” (w.e.f. 20 August 2007); Public Interest Disclosure Act, S.S. 2011, c P-38.1 (w.e.f 1 September 2011); The Public Interest Disclosure (Whistleblower Protection) Act, S.A. 2012, c P-39.5 (w.e.f. 1 June 2013); and Public Interest Disclosure and Whistleblower Protection Act, S.N.L. 2014, c P.37.2 (w.e.f. 1 July 2014). Note “w.e.f” means “with effect from” the date indicated which identifies when the statute came into effect.

Public Interest Disclosure of Wrongdoing Act, above n 30, at s 8 (N.S.); Public Interest Disclosure Act, above n 30 ibid. at s 14 (N.B.); and The Public Interest Disclosure (Whistleblower Protection) Act, above n 30 at s 14 (Man.).

ibid.

Public Service of Ontario Act, 2006 above n 30 s 143 and Public Interest Disclosure and Whistleblower Protection Act, above n 30 at s 21(2) (N.L.).

Public Interest Disclosure of Wrongdoing Act, above n 30 at s 35 (Nova Scotia); The Public Interest Disclosure (Whistleblower Protection) Act, above n 30 at s 33(4) (Manitoba); Public Interest Disclosure Act, above n 30 at s 40 (Saskatchewan); The Public Interest Disclosure (Whistleblower Protection) Act, above n 30 at s 49 (Alberta); and Public Service of Ontario Act, 2006, above n 30 at s 145(2) in combination with the Provincial Offences Act, R.S.O. 1990, c P.33, s 61 which establishes the general fine applicable when a statute does not otherwise express a specific fine or range of fines which is the situation with the Public Service of Ontario Act, 2006.

The Public Interest Disclosure (Whistleblower Protection) Act, above n 30 at s 27 (Alberta) and Public Interest Disclosure Act, above n 30 at s 42 (Saskatchewan).

S.N.L. 2007, c H-10.1 (Bill 33).

HJ Derek Green, Commissioner, Rebuilding Confidence: Report of the Review Commission on Constituency Allowances and Related Matters (St. John’s, Government of Newfoundland and Labrador, 2007). The specific instances of abuse are referred to in the statement in the House of Assembly by Hon. Tom Marshall, Minister of Finance and President of Treasury Board, on second reading of Bill 33, above n 39. See: House of Assembly Proceedings, 45th General Assembly, 4th Session, Vol. XLV, No. 3 (Hansard) (14 June 2007) available at www.​assembly.​nl.​ca/​business/​hansard.

S.Q. 2011, c. 17; R.S.Q., c L-6.1 (the title of the Act in the French language is Loi concernant la lutte contre la corruption). On 23 September 2014, the Quebec National Assembly gave first reading to Bill 192, An Act to amend the Anti-Corruption Act as concerns protection of whistleblowers which would broaden the protection of whistleblowers by enacting a scheme of protection similar to that in other jurisdictions in Canada. As a private member’s Bill from an opposition party, it is not expected that Bill 192 will be enacted but it may foretell a future legislative initiative by government.

ibid. Art 2.

See Council Regulation (EURATOM) No 1074/1999 (25 May 1999) concerning investigations conducted by the European Anti-Fraud Office (OLAF).

Above n 43 at Art. 26: “Any person who wishes to disclose a wrongdoing may do so by disclosing information to the Commissioner that the person believes could show that a wrongdoing has been committed or is about to be committed, or that could show that the person has been asked to commit a wrongdoing.”

Above n 24 at Art. 31. This disclosure of identity serves to facilitate the investigation and prosecution of criminal misconduct by the Director of Criminal and Penal Prosecutions.

ibid. at Art. 33.

ibid.

I Cantin et JM Cantin, La dénonciation d’actes répréhensibles en milieu de travail ou Whistleblowing, above n 6, at 43.

Where legal-professional privilege does apply, there is no doubt that a client’s identity will be confidential within the meaning of professional conduct. The ethical rules in Canada go much further, however, placing a general obligation on counsel not to reveal the identity of a client or the fact of being consulted unless required by the nature of the matter.

Cantin et Cantin, then add, at p. 43, footnote 79: “Il nous semble que ce principe s’applique tant aux matière criminelles que civiles.”

Threats and Retaliation Against Employees/Punishment

425.1 (1) No employer or person acting on behalf of an employer or in a position of authority in respect of an employee of the employer shall take a disciplinary measure against, demote, terminate or otherwise adversely affect the employment of such an employee, or threaten to do so,

(a)

with the intent to compel the employee to abstain from providing information to a person whose duties include the enforcement of federal or provincial law, respecting an offence that the employee believes has been or is being committed contrary to this or any other federal or provincial Act or regulation by the employer or an officer or employee of the employer or, if the employer is a corporation, by one or more of its directors; or

 

(b)

with the intent to retaliate against the employee because the employee has provided information referred to in paragraph (a) to a person whose duties include the enforcement of federal or provincial law.

 

No case reports of persons being charged with an offence under this section were identified in an electronic database search and a review of the commercially published annotated editions of the Criminal Code. Section 425.1 has been referenced in Anderson v IMTT-Québec Inc., 2013 FCA 90 (CanLII); Merk v International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 771, [2005] 3 SCR 425; Cadillac Fairview Corporation Ltd. v Standard Parking of Canada Ltd., 2003 CanLII 23598 (ON SC); and El-Helou v Courts Administration Service, 2011 CanLII 93945 (CA PSDPT). In Anderson, above, Mainville J.A. commented:

– [44] The purpose of section 425.1 of the Criminal Code is not to allow an employee to make with impunity, reckless complaints to public authorities and without regard for the employer’s internal mechanisms or respect for work colleagues. The provision does not allow an employee to avoid the consequences of a dismissal in progress by filing reckless complaints to public authorities against his or her employer and work colleagues. –

At the federal level, such employment standards are found in the Canada Labour Code, R.S.C. 1985, c L-2, Part III “Standard Hours, Wages, Vacations and Holidays”, ss 166–267. This statute only applies to employees in federally regulated employment, for example, persons engaged in interprovincial and international transportation, and to all private employees in the three northern territories.

ibid.

ibid. s 256(1): “Every person who… (c) discharges, threatens to discharge or otherwise discriminates against a person because that person (i) has testified or is about to testify in any proceedings or inquiry taken or had under this Part, or (ii) has given any information to the Minister or an inspector regarding the wages, hours of work, annual vacation or conditions of work of an employee, is guilty of an offence and liable on summary conviction to a fine not exceeding five thousand dollars.”

See Labour Standards Act, R.S.S. 1978, c L-1, s 74 as amended by S.S. 1994, c 39, s 41 and Loi sur les normes du travail, L.R.Q., c N-1.1, art 122 as amended by L.Q. 2011, c. 17,art 56. The Quebec statute is expressly linked to disclosures of wrongdoing covered by the provincial anti-corruption legislation.

Above n 60 s 74:

Discrimination by employer prohibited

74(1) No employer shall discharge or threaten to discharge, take any reprisal against or in any manner discriminate against an employee because the employee:

(a)

has reported or proposed to report to a lawful authority any activity that is or is likely to result in an offence pursuant to an Act or an Act of the Parliament of Canada; or

 

(b)

has testified or may be called on to testify in an investigation or proceeding pursuant to an Act or an Act of the Parliament of Canada.

 

(2) Subsection (1) does not apply where the actions of an employee are vexatious.

Merk above note 53 at para 38 (per Binnie J.). The Court rejected the argument that the statutory provision was penal in nature and should, therefore, be interpreted narrowly. Instead, the Court concluded that a plain meaning approach to interpretation should be informed by the labour relations nature of the statute and, thus, given a large and liberal construction. Between the date of the oral argument before the Supreme Court of Canada on 10 February 2005 and the date of decision on 24 November 2005, the Saskatchewan Legislature on 27 May 2005 amended the Act to define “lawful authority” to include “any person directly or indirectly responsible for supervising the employee”. See: An Act to amend The Labour Standards Act, S.S. 2005, c 16 s 8.

For example: Industrial Relations Act, R.S.N.B. 1973, c I-4, s 5(3); Labour Relations Act, 1995, S.O. 1995, c 1 Schedule A, s 87(1); Labour Relations Code, R.S.B.C. 1996, c 244, s 5(1); Canada Labour Code, R.S.C. 1985, c L-2, s 94(3)(iii) [re employer], s 94 [re trade union], s 147 [general prohibition], s 256(1) [offence provision].

Canada Labour Code, ibid. s 256(1).

ibid. s 25(1)(b).

Canada Labour Code, above n 64.

50.(1) No employer or person acting on behalf of an employer shall,

(a)

dismiss or threaten to dismiss a worker;

 

(b)

discipline or suspend or threaten to discipline or suspend a worker;

 

(c)

impose any penalty upon a worker; or

 

(d)

intimidate or coerce a worker,

 

because the worker has acted in compliance with this Act or the regulations or an order made thereunder, has sought the enforcement of this Act or the regulations or has given evidence in a proceeding in respect of the enforcement of this Act or the regulations or in an inquest under the Coroners Act.

For Quebec, see Loi sur la Santé et la sécurité du travail, L.R.Q., c S-2.1, art. 227 and for New Brunswick, see: Occupational Health and Safety Act, S.N.B. 1983, c O-0.2, s 24. The provisions in other provinces are similar.

^. S.C. 1999, c 33, s. 96:

96. (1) Where a person has knowledge of the occurrence or likelihood of a release into the environment of a substance specified on the List of Toxic Substances in Schedule 1, but the person is not required to report the matter under this Act, the person may report any information relating to the release or likely release to an enforcement officer or to any person to whom a report may be made under section 95.

(4) Despite any other Act of Parliament, no employer shall dismiss, suspend, demote, discipline, harass or otherwise disadvantage an employee, or deny an employee a benefit of employment, by reason that

(a)

the employee has made a report under subsection (1). . . .

 

R.S.O. 1990 c E.19.

S.O. 1993, c 28.

By regulation, a list of more than 20 provincial statutes are proscribed for the purposes of the Environmental Bill of Rights. See: General Regulation under Environmental Bill of Rights (1993) On. Reg. 73/94, s 3.

For example: Child, Family and Community Service Act, R.S.B.C. 1996, c 46, s 101.1; Nursing Homes Act, R.S.O. 1990, c N.7, s 243; Regulated Health Professions Act, 1991, S.O. 1991, c 18, s 92.1; and Employment Protection for Foreign Nationals Act, S.O. 2009, c 32, ss 10, 24 and 41.

ibid. s 2(o).

ibid. at s 31(2).

S.N.L. 2010, c C-12.2, s 11(7).

Website of the Public Sector Integrity Commissioner of Canada accessed on 28 November 2013 and 22 November 2014 at www.​psic-ispc.​gc.​ca/​eng under “Case Reports” and “Referrals to the Tribunal”.

R.S.C. 1985, c P-21.

Website of the Public Servants Disclosure Protection Tribunal accessed on 28 November 2013 and 22 November 2014 at www.​psdpt-tpfd.​gc.​ca/​Home-eng.​html under “Cases”. See also: El-Helou v Courts Administration Service, above n 53.

ibid.

ibid.

These annual reports are no longer available on the website of the Conflict of Interest Commissioner but were provided by the Commissioner’s Office as email attachments.

Office of the Ombudsman, New Brunswick: Annual Report 2011–2012 (May 2013) at 16. The 2012–2013 Annual Report is not yet available on the Ombudsman’s website.

See Office of the Integrity Commissioner of Ontario, Annual Report, available at www.​oico.​on.​ca (accessed on 25 and 29 November 2013).

Binda v Ontario (Environment), 2011 CanLII 93306 (ON PSGB).

Above n 30.

ibid. at para 22.

Le rapport annuel de gestion du Commissaire à la lutte contre la corruption 2011–2012 (Gouvernement du Québec, 2012) at 37. (The annual report is accessible online at www.​upac.​gouv.​qc.​ca).

ibid.

Le rapport annuel de gestion du Commissaire à la lutte contre la corruption 2012–2013 (Gouvernement du Québec, 2013) at 38. (The annual report is accessible online at www.​upac.​gouv.​qc.​ca).

ibid.

The Commission of Inquiry on the Awarding and Management of Public Contracts in the Construction Industry, commonly known as the Charbonneau Commission after its chairperson, Judge France Charbonneau. The Commission was created on 19 October 2011 and resulted in the resignations of the mayors of several communities in Quebec as well as the laying of criminal charges against a number of persons.

ibid. at para 30.

ibid. at para 41.

Section 24 of the Charter is the application section. It provides that the Charter applies to “the Parliament and government of Canada” and to “the legislature and government of each province” in relation to “all matters within the authority” of each. The Charter does not apply directly to private legal relations.

ibid. at para 28 (per Binnie J.).

ibid. at para 53.

See also Chopra v. Canada (Treasury Board), (2006), 354 N.R. 48 (F.C.A.) – employee critical of government policy to collect anthrax antibiotics after 11 September 2001 terrorist attacks on the United States but failed to attempt to resolve the matter internally and immediate disclosure not justified under urgent health and safety exception – and Re British Columbia (Ministry of Public Safety) and B.C.G.E.U. (Kambo) (2009), 186 L.A.C. (4th) 143 (Steeves) – supervisory employee held not justified for release of confidential information via email to media “tip lines” concerning health and safety matters at correctional facility, including identify and health status of an inmate.

ibid. at 847–848.

ibid. at 902 and 904.

Petitclerc c. Québec (Société immobilière), 2008 QCCRT 302 (CanLII) dismissing review of the decision at first instance in Petitclerc v Société Immobilière du Québec, 2008 QCCRT 42 (CanLII).

ibid. at 2008 QCCRT 42, at para 67:

[67] Finalement, la déclaration ne rencontre pas les cinq critères établis par la jurisprudence pour qualifier un geste de « whistleblowing » : 1) ce qui a été communiqué est vrai; 2) la critique est faite de façon raisonnable et responsable; 3) les recours internes ont été épuisés; 4) l’employeur est une institution publique; 5) la question est d’intérêt public.

Above n 30 and text at n 38.

Above text at nn 43–49.

Above text at n 52.

Above text at nn 59 and 60.

Above text following n 25 and text at n 35.

Above text at n 56 and at nn 59–60.

Above text at nn 52–53.

Above text at nn 64 ff.

Above text at nn 102 ff.

Above text at nn 50–51.

Above text at nn 17 ff.

Above text at n 31.

Above text at n 34.

Above text at n 35.

RE Brown, Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States, 2nd edn, looseleaf (Toronto, ON: Carswell, 1999), vol. 3 at 135.

Above text at n 16.

Above text at n 25.

Above text at nn 43–44.

Above text following n 25.

Above text following n 71.

Above n 41 at 5-47-48.

Examples of such service providers are CanaGlobe Compliance Solutions Inc. (website www.​canaglobecomplia​nce.​com) and ConfidenceLine by CKR Global HR Services (website www.​confidenceline.​net).

UN General Assembly Resolution 58/4 of 31 October 2003. Canada signed the Convention on 21 May 2004 and deposited the instrument of ratification on 2 October 2007. The Convention, article 33 provides for domestic whistleblower protection legislation:

Article 33. Protection of reporting persons

Each State Party shall consider incorporating into its domestic legal system appropriate measures to provide protection against any unjustified treatment for any person who reports in good faith and on reasonable grounds to the competent authorities any facts concerning offences established in accordance with this Convention.