The Basics of Whistleblowing and Reprisal

Public Servants Disclosure Protection Tribunal Canada

February 2012

Table of Contents

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What is Whistleblowing?

Ordinary Meaning

Whistleblowing has been defined in ordinary terms as follows:

Whistleblowing in the Legal Context

Statutes and court cases tend to use terms such as "public interest disclosure" or "disclosure of wrongdoing" instead of the term "whistleblowing".

There is a long-standing principle that public servants owe a duty of loyalty to the Government of Canada. This means that public servants must exercise restraint in making public criticisms of the Government of Canada.2 This duty has been discussed in several court cases which are analyzed below. Essentially, this duty relates to the importance and necessity of an impartial and effective public service.3

There has been much debate in the courts about the balance between the right of freedom of expression (ss 2(b)) guaranteed by the Canadian Charter of Rights and Freedoms (the Charter)4 and the duty of loyalty. As Ralph Nader put it, "at what point should an employee resolve that allegiance to society ... must supersede allegiance to the organization's policies...and then act on that resolve by informing outsiders or legal authorities?"5

Although this question is difficult to answer, there is a consensus that the duty of loyalty is not absolute and that certain circumstances do indeed justify breaching this duty. Defining these circumstances has therefore become the challenge in Canadian courts and tribunals.

Sources of Law

In legal language, the issue of whistleblowing may be addressed in two key sources: statutes and decisions of judges. The development of the law of whistleblowing in both of these sources is traced below.

a)  Court Cases: Pre-Charter

Although the law pertaining to the disclosure of wrongdoing is a relatively new field, the dialogue in the courts pertaining to an employee's ability to protect the public by disclosing wrongdoing is several decades old. In 1981, J.M. Weiler, an arbitrator at the time, discussed the general issue of reporting wrongdoing in the context of the public service. In that decision, Re Ministry of Attorney General, Corrections Branch and British Columbia Government Employees Union, he has this to say about the balance between freedom of expression and the duty of loyalty:

In 1985, the Supreme Court of Canada established the foundation for the defense of whistleblowing in Fraser.7 The Court acknowledged the importance of freedom of expression, but ultimately did not find that the defense of whistleblowing could be upheld in this case.

The Supreme Court identified three circumstances in which a public servant may put freedom of expression above the duty of loyalty in order to make disclosures of wrongdoing by other public servants:

In order to determine whether there was an impact with respect to a public servant's ability to perform his or her duties (real or perceived), the Courts will look at possible impairment to perform both his or her specific job as well as any public service job. In some circumstances, an inference of impairment can be drawn without the need for direct evidence.9

Since Fraser, the courts have also identified relevant factors for determining whether the above conditions are met in a given situation:

If the disclosure of wrongdoing in question does not fit into one of the three identified circumstances, and taking into account the above-listed factors, the public servant may be subject to disciplinary action, including dismissal.

b)  Court Cases: Post-Charter

The facts that gave rise to the Fraser decision occurred before the Charter came into place. Before the Charter, freedom of expression was simply characterized as a deep-rooted democratic value. When the Charter was passed, the right to freedom of expression was officially enshrined under section 2:

As a result, from that time on, any discussion around whistleblowing, freedom of expression and the duty of loyalty had to consider the Charter and the right to freedom of expression enshrined in section 2. In addition, section 1 of the Charter had to be taken into consideration.

As a general rule, rights guaranteed under the Charter can only very rarely be infringed, and if infringed, are subject to the reasonable limits of a democratic society. Section 1 of the Charter describes the test that the courts must consider in determining whether a Charter right should be infringed. That provision states that:

In Haydon 1, a post-Charter decision, the Federal Court discussed the duty of loyalty and the right to freedom of expression in the context of the Charter. The Court stated that:

Therefore the duty of loyalty, generally speaking, is a reasonable limit on the right to freedom of expression. In other words, it is generally accepted that the duty of loyalty is a good enough reason to infringe on the right to freedom of expression – but there are exceptions.

The rules set out in Fraser are still used to guide tribunals and courts as to when the right to freedom of expression should not be limited by this duty.

Several other cases have gone before the courts on the issue of whether or not there was whistleblowing. The analysis in those cases has generally required that if whistleblowing was found to have occurred, the next question was whether or not the disclosure was a reasonable limit under the Charter. These cases have considered many factors, such as:

• the content, accuracy or truthfulness of the criticism or information in question;
• the sensitivity of the information;
• the manner in which the criticism was made public;
• the extent to which the employer's reputation and ability to conduct its business was compromised; and
• the interest of the public in the information.

Issues pertaining to reprisal and whistleblowing can be raised in a variety of fact situations and contexts. Here are some examples:

• providing information on RCMP investigations to a writer on apparent immigration fraud;20
• providing information to a journalist writing a book about motorcycle gangs;21
• commenting on a department's ban based on public health and suggesting a political pretext;22
• attributing questionable motives to a minister and his department;23 and
• disclosure by a union official regarding the border system.24

c)  Whistleblowing Legislation

The first federal statute that addresses whistleblowing and reprisal in a comprehensive fashion is the Public Servants Disclosure Protection Act.25 This Act was passed in 2007. While principles from Fraser and Haydon are expressed in this statute, this legislation also provides a very comprehensive framework for looking at whistleblowing, reprisal, and the avenues for making a disclosure of wrongdoing.

Section 8 of the act expands upon the circumstances set out in Fraser, by defining a wrongdoing as any of the following:

In addition to the above expansion of the definition of 'wrongdoing', the Act also does the following:

• builds upon the "whistleblower defence" discussed in the cases mentioned above;
• confirms the need to consider the duty of loyalty owed by public servants as well as the primacy of freedom of expression;
• establishes the Public Servants Disclosure Protection Tribunal (Tribunal). The creation of the Tribunal means that the Commissioner may now apply to it where "warranted" (subsection 20.4(1)) for a determination as to whether or not reprisal was taken; and
• allows the Tribunal to grant an order of remedy in favour of a complainant as well as an order of disciplinary action against any person who was determined by it to have taken a reprisal (subsections 21.4(1) and 21.5(4)).

As stated by the Tribunal in El-Helou v Courts Administration Service (2011-PT-01):26

What is a reprisal?

Ordinary meaning

The Oxford Dictionary defines a reprisal as "an act of retaliation".28

Reprisal in the Legal Context

a)  The Public Servants Disclosure Protection Act

Section 2 of the Act defines a reprisal as:

b)  Public Servants Disclosure Protection Tribunal Decisions

As mentioned above, the Act provides for the creation of this Tribunal to hear cases on reprisal referred to it by the Commissioner.

As highlighted in 2011-PT-01, "the Tribunal recognizes that it must play its role to ensure that this new legislative scheme not be enfeebled".31 In the same decision the Tribunal highlights that its jurisdiction is conferred by the application made by the Commissioner.32

However, once the Application has been referred to the Tribunal, the Tribunal plays a full adjudicative function with full powers of inquiry. It is up to the Tribunal to decide whether or not reprisal has occurred within the meaning of the Act. This adjudicative function emphasizes the importance that the parties be heard.

In 2011-PT-01 the Tribunal states that, "[t]his is confirmed in several provisions of the Act which emphasize the central importance afforded to the parties being heard, and of the right of this Tribunal to conduct a hearing with the full powers of inquiry of federally appointed judges".33 It should be underscored that Tribunal hearings are full hearings of evidence rather than simply reviews of the Commissioner's inquiry. It is also noteworthy that when the Tribunal has made an order relating to reprisal, an employer or any person may request that this order be filed in Federal Court to ensure its enforceability.34

Concluding Remarks

The above text provides a brief background into the areas of whistleblowing and reprisal as well as the Tribunal's role in this area of the law. For further information on these topics, as well as on the Tribunal itself, please refer to the Tribunal's website.

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