Bill C-499

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First Reading

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	1st Session, 36th Parliament, 46-47-48 Elizabeth II, 1997-98-99
	The House of Commons of Canada
	BILL C-499
	An Act respecting the protection of whistle blowers and to amend the Auditor General Act, the Parliamentary Employment and Staff Relations Act and the Public Service Staff Relations Act
	Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
	SHORT TITLE
Short title	1. This Act may be cited as the Whistle Blowers Protection Act.
	PURPOSE OF ACT
Purpose of Act	2. The purpose of this Act is to protect members of the Public Service of Canada from retaliation for making, in good faith, allegations of wrongdoing and to provide a means for making the allegations in confidence to an independent officer who will investigate them and report to Parliament any problems that are confirmed but not corrected.
	INTERPRETATION
Definitions	3. The definitions in this section apply in this Act.
``Auditor General'' « vérifica- teur général »	``Auditor General'' means the Auditor General of Canada.
``employee'' « fonction- naire »	``employee'' means a person who is an employee within the meaning of the Public Service Staff Relations Act or the Parliamentary Employment and Staff Relations Act.
``Public Service'' « fonction publique »	``Public Service'' means the parts of the public service of Canada to which the Public Service Staff Relations Act or the Parliamentary Employment and Staff Relations Act apply.
``wrongful act'' « abus »	``wrongful act'' means an act or omission that is
	(a) an offence against an Act of the Parliament of Canada or of the legislature of a province or any instrument issued under the authority of any such Act;
	(b) likely to cause a significant waste of public money;
	(c) likely to endanger public health or safety or the environment; or
	(d) a breach of an established public policy or directive in the written record of the Public Service.
	REPORT BY EMPLOYEE
Report by employee	4. (1) An employee who has reason to believe that an official in the Public Service has committed or has indicated an intention to commit a wrongful act may send a report on the matter to the Auditor General in writing, identifying the employee and stating the precise grounds on which the employee believes
	(a) the act or omission is a wrongful act; and
	(b) the act or omission has been committed or will be committed.
Initial review	(2) The Auditor General, on receiving a report under subsection (1), shall review the report, may ask the employee for further information and may make such further enquiries as are necessary in the opinion of the Auditor General.
Section 13 of the Auditor General Act	5. (1) Section 13 of the Auditor General Act applies to any inquiry made by the Auditor General under this Act.
Functions	(2) The functions of the Auditor General under this Act are within the work of the office of the Auditor General for the purposes of the Auditor General Act.
Report rejected	6. (1) If the Auditor General is of the opinion that the matter reported
	(a) is trivial or vexatious,
	(b) has not and is not likely to result in the commission of a wrongful act, or
	(c) was not made in good faith,
	the Auditor General shall so advise the employee and take no further action on the matter.
Mistake	(2) A report is not made in bad faith solely on the grounds that it is based on mistaken facts.
False or misleading statement	(3) If the report contains any statement the employee knew to be false or misleading at the time it was made, the Auditor General may determine that the report was made in bad faith.
Good faith	(4) An employee shall be presumed not to act in good faith where, in making a disclosure referred to in subsection (1), the employee violates any statute of the Parliament of Canada or a rule of law protecting privileged communications as between solicitor and client, unless the Auditor General determines on a balance of probabilities that the violation was prompted by reasonable concerns for public health or safety.
Breach of oath	(5) A report to the Auditor General by an employee in good faith pursuant to section 4 is not a breach of any oath of office or loyalty or secrecy taken by the employee.
Report accepted	7. (1) If the Auditor General is of the opinion that
	(a) the matter reported is one of substance and has or is likely to result in the commission of a wrongful act, and
	(b) the report was made in good faith,
	the Auditor General shall so advise the employee, make whatever further inquiries are necessary to ascertain the details of the matter and make a report on the matter to the minister of the Crown responsible for the matter.
Response by minister	(2) A minister who receives a report under subsection (1) shall investigate the matter and make a response to the Auditor General advising of any action the minister has taken or will take to deal with the matter.
Report to Parliament	(3) The Auditor General shall make a report to Parliament of the substance of the report made by the employee and the response made by the minister in the manner provided by section 7 or 8 of the Auditor General Act.
Annual report	(4) The Auditor General shall include in the annual report to Parliament made pursuant to the Auditor General Act a statement of activity under this Act including
	(a) the number of reports received pursuant to this Act;
	(b) the number of reports rejected pursuant to section 6;
	(c) the number of reports communicated to a minister;
	(d) the number of reports that on inquiry were found to have substance;
	(e) the number of reports that are still under inquiry; and
	(f) the number of reports that on inquiry were found to have substance and in respect of which action satisfactory to the Auditor General has not been taken.
	PROHIBITIONS
No disciplinary action	8. (1) No person shall subject an employee to any disciplinary action resulting in a demotion, suspension, dismissal, financial penalty, loss of seniority, advancement or opportunity in the Public Service on the grounds of having made a report in good faith under section 4.
Presumption	(2) Where a person takes disciplinary action of a type described in subsection (1) against an employee within the year following receipt by the Auditor General of Canada of a report sent by the employee under section 4, the person shall be deemed, in the absence of a preponderance of evidence to the contrary, to have taken such disciplinary action against the employee solely because the employee sent the report to the Auditor General of Canada.
No mention in reference	(3) No member of the Public Service shall divulge to any person the existence or nature of a report made by an employee pursuant to section 4 in such a way as to identify the employee or mention it in any oral or written report, reference or other communication made or given with respect to the employee.
False information	(4) No employee or other person shall give false information to the Auditor General under section 4.
	OFFENCES AND PUNISHMENT
Offences and punishment	9. (1) A person who contravenes a provision of subsection 8(1), (3) or (4) of this Act is guilty of an offence and liable on summary conviction to a fine not exceeding $5000.
For greater certainty	(2) For greater certainty, the fact that proceedings have been brought under subsection (1) does not preclude recourse to any grievance proceedings provided for under an Act of Parliament and based on the same facts alleged in the proceedings under subsection (1).
R.S., c. A-17; 1992, c. 54; 1994, c. 32; 1995, c. 43	AUDITOR GENERAL ACT
	*10. Section 7 of the Auditor General Act* is amended by adding the following after subsection (2):**
Annual report	(2.1) In the annual report referred to in subsection (1), the Auditor General shall include an analysis of the administration and operation of the Whistle Blowers Protection Act with recommendations pertaining to the continuation of this Act and the changes required thereto, if any.
R.S., c. 33 (2nd Supp.)	PARLIAMENTARY EMPLOYMENT AND STAFF RELATIONS ACT
	*11. Section 62 of the Parliamentary Employment and Staff Relations Act* is amended by adding the following after subsection (1):**
Right of employee	(1.1) Subject to subsection (1.2) and, for greater certainty, where an employee feels aggrieved as a result of any disciplinary action against the employee resulting in a demotion, suspension, dismissal, financial penalty, loss of seniority, advancement or opportunity related to the employee's employment on the grounds of having made a report in good faith in accordance with section 4 of the Whistle Blowers Protection Act, the employee is entitled to present a grievance under subsection (1) at each of the levels, up to and including the final level, in the grievance process provided for by this Act.
Presumption	(1.2) An employee who presents a grievance with respect to any disciplinary action that, in the opinion of the employee, was taken in the circumstances referred to in subsection (1.1) shall receive the benefit of the presumption set out in subsection 8(2) of the Whistle Blowers Protection Act.
	12. (1) Subsection 63(1) of the Act is replaced by the following:
Reference of grievance to adjudication	63. (1) Where an employee has presented a grievance, up to and including the final level in the grievance process, with respect to
	(a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award,
	(a.1) in the case of an employee who feels aggrieved as a result of any disciplinary action referred to in subsection 62(1.1) on the grounds of having made a report in good faith under section 4 of the Whistle Blowers Protection Act, the disciplinary action,
	(b) disciplinary action - other than a disciplinary action referred to in subsection 62(1.1) - against the employee resulting in suspension or a financial penalty,
	(c) the termination of employment of the employee - other than the dismissal referred to in subsection 62(1.1) or rejection on probation in respect of an initial appointment,
	(d) demotion of the employee - other than the demotion referred to in subsection 62(1.1),
	(e) where the employee has been denied an appointment, the employer's evaluation of the skill, fitness and ability of the employee with respect to the employee's qualification for the appointment, or
	(f) subject to subsection 5(3), the employer's classification of the employee,
	and the grievance has not been dealt with to the satisfaction of the employee, the employee may refer the grievance to adjudication.
	(2) Section 63 of the Act is amended by adding the following after subsection (3):
Presumption	(4) An employee who refers to adjudication a grievance with respect to any disciplinary action that, in the opinion of the employee, was taken in the circumstances referred to in subsection 62(1.1) shall receive the benefit of the presumption set out in subsection 8(2) of the Whistle Blowers Protection Act.
	13. Section 66.1 of the Act is replaced by the following:
Powers of adjudicator	66.1 An adjudicator has, for the purposes of the adjudication of a grievance respecting a matter referred to in paragraph 63(1)(a), (a.1) , (b) or (c) that is referred to adjudication, the powers that the Board has under section 15, other than paragraph 15(e) or (f), in relation to the hearing or determination of a proceeding before it.
	14. Section 67 of the Act is amended by adding the following after subsection (2):
Special compensation	(2.1) Where an employee has referred a grievance under subsection 62(1.1) in relation to a disciplinary action to an adjudicator, the adjudicator may, if the adjudicator finds that the employee has suffered in respect of feelings or self-respect as a result of the disciplinary action, and in addition to any other order the adjudicator may make, order the employer who took the disciplinary action to pay such compensation to the employee, not exceeding five thousand dollars, as the adjudicator may determine.
	15. Section 84 of the Act is renumbered as subsection 84(1) and is amended by adding the following after that subsection:
Annual report	(2) The annual report shall include the number of grievances referred to adjudication under paragraph 63(1)(a.1).

Bill C-499

BILL C-499