Bill C-2
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COMPLAINTS RELATING TO REPRISALS
Prohibition Against Reprisals
Prohibition against reprisal
19. No person shall take any reprisal against a public servant or direct that one be taken against a public servant.
Complaints
Complaints
19.1 (1) A public servant or a former public servant who has reasonable grounds for believing that a reprisal has been taken against him or her may file with the Commissioner a complaint in a form acceptable to the Commissioner. The complaint may also be filed by a person designated by the public servant or former public servant for the purpose.
Time for making complaint
(2) The complaint must be filed not later than 60 days after the day on which the complainant knew, or in the Commissioner’s opinion ought to have known, that the reprisal was taken.
Time extended
(3) The complaint may be filed after the period referred to in subsection (2) if the Commissioner feels it is appropriate considering the circumstances of the complaint.
Effect of filing
(4) Subject to subsection 19.4(4), the filing of a complaint under subsection (1) precludes the complainant from commencing any procedure under any other Act of Parliament or collective agreement in respect of the measure alleged to constitute the reprisal.
Exception — RCMP
(5) A member or former member of the Royal Canadian Mounted Police may not make a complaint under subsection (1) in relation to any matter that is the subject of an investigation or proceeding under Part IV or V of the Royal Canadian Mounted Police Act or an investigation or proceeding relating to administrative discharge under the Royal Canadian Mounted Police Regulations, 1988 unless
(a) he or she has exhausted every procedure available under that Act or those regulations for dealing with the matter; and
(b) the complaint is filed within 60 days after those procedures have been exhausted.
Complaint in respect of past disclosures
19.2 (1) A public servant who alleges that a reprisal was taken against him or her by reason that he or she, in good faith, disclosed, after February 10, 2004 and before the day on which section 19.1 comes into force, a wrongdoing in the course of a parliamentary proceeding or an inquiry under Part I of the Inquiries Act may file a complaint under that section in respect of the reprisal.
Time limit
(2) The public servant may file the complaint within 60 days after the later of
(a) the day on which section 19.1 comes into force, and
(b) the day on which he or she knew or, in the opinion of the Commissioner, ought to have known that the reprisal was taken.
Refusal to deal with complaint
19.3 (1) The Commissioner may refuse to deal with a complaint if he or she is of the opinion that
(a) the subject-matter of the complaint has been adequately dealt with, or could more appropriately be dealt with, according to a procedure provided for under an Act of Parliament, other than this Act, or a collective agreement;
(b) if the complainant is a member or former member of the Royal Canadian Mounted Police, the subject-matter of the complaint has been adequately dealt with by the procedures referred to in subsection 19.1(5);
(c) the complaint is beyond the jurisdiction of the Commissioner; or
(d) the complaint was not made in good faith.
Restriction
(2) The Commissioner may not deal with a complaint if a person or body acting under another Act of Parliament or a collective agreement is dealing with the subject-matter of the complaint other than as a law enforcement authority.
Royal Canadian Mounted Police Act
(3) For the purpose of subsection (2), a person or body dealing with a matter in the course of an investigation or proceeding under the Royal Canadian Mounted Police Act is deemed not to be dealing with the matter as a law enforcement authority.
No jurisdiction
(4) The Commissioner ceases to have jurisdiction to deal with a complaint filed by a member or former member of the Royal Canadian Mounted Police if an application for judicial review of any decision relating to the procedures referred to in subsection 19.1(5) is made by the member.
Time limit
19.4 (1) The Commissioner must decide whether or not to deal with a complaint within 15 days after it is filed.
Notice — decision to deal with complaint
(2) If the Commissioner decides to deal with a complaint, he or she must send a written notice of his or her decision to the complainant and to the person or entity that has the authority to take disciplinary action against each person who participated in the taking of a measure alleged by the complainant to constitute a reprisal.
Reasons — decision not to deal with complaint
(3) If the Commissioner decides not to deal with a complaint, he or she must send a written notice of his or her decision to the complainant and set out the reasons for the decision.
Effect of not dealing with complaint
(4) If the Commissioner decides not to deal with a complaint and sends the complainant a written notice setting out the reasons for that decision,
(a) subsection 19.1(4) ceases to apply; and
(b) the period of time that begins on the day on which the complaint was filed and ends on the day on which the notice is sent is not to be included in the calculation of any time the complainant has to avail himself or herself of any procedure under any other Act of Parliament or collective agreement in respect of the measure alleged to constitute the reprisal.
Exception
(5) Subsection (4) does not apply if the Commissioner has decided not to deal with the complaint for the reason that it was not made in good faith.
Disciplinary Action
Restriction on disciplinary action
19.5 (1) If the Commissioner decides to deal with a complaint and sends a written notice under subsection 19.4(2) and no disciplinary action has yet been taken against a person by reason of that person’s participation in the taking of a measure alleged by the complainant to constitute a reprisal, no disciplinary action may be taken during the period referred to in subsection (3) in relation to the person’s participation in the taking of the measure.
Exception
(2) Subsection (1) does not apply in respect of disciplinary action taken as a result of a settlement approved by the Commissioner or an order of the Tribunal.
Period during which no disciplinary action may be taken
(3) For the purposes of subsection (1), the period during which no disciplinary action may be taken is the period that begins on the day on which the Commissioner sends the notice referred to in subsection 19.4(2) and ends on the earliest of
(a) the day on which the complaint is withdrawn or dismissed,
(b) the day on which the Commissioner makes an application to the Tribunal for an order referred to in paragraph 20.4(1)(a) in respect of the complaint, and
(c) in the case where the Commissioner makes an application to the Tribunal for the orders referred to in paragraph 20.4(1)(b) in respect of the complaint, the day on which the Tribunal makes a determination that the complainant was not subject to a reprisal taken by the person.
Period not to be included
(4) If a time limit is provided for under any Act of Parliament or collective agreement for the taking of disciplinary action, the period during which disciplinary action may not be taken against the person by reason of subsection (1) is not to be included in the calculation of the prescribed time limit.
Application
(5) This section applies despite Part IV of the Royal Canadian Mounted Police Act.
Suspension of disciplinary action
19.6 (1) If the Commissioner decides to deal with a complaint and sends a written notice under subsection 19.4(2) and disciplinary action has already been taken against a person by reason of the person’s participation in the taking of a measure alleged by the complainant to constitute a reprisal
(a) the implementation of the disciplinary action — and the commencement or continuation of any procedure in relation to the disciplinary action by the person under any other Act of Parliament or collective agreement — is suspended for the period referred to in subsection (3); and
(b) the appropriate chief executive must take the measures necessary to put the person in the situation the person was in before the disciplinary action was implemented.
Exception
(2) If the disciplinary action already taken against a person by reason of the person’s participation in the taking of a measure alleged by the complainant to constitute a reprisal has been the subject of a decision of a court, tribunal or arbitrator dealing with it on the merits, other than a decision made under the Royal Canadian Mounted Police Act,
(a) subsection (1) does not apply; and
(b) neither the Commissioner nor the Tribunal may deal with the issue of disciplinary action against that person.
Period of suspension
(3) For the purposes of paragraph (1)(a), the suspension begins on the day on which the Commissioner sends the notice referred to in subsection 19.4(2) and ends on the earliest of
(a) the day on which the complaint is withdrawn or dismissed,
(b) the day on which the Commissioner makes an application to the Tribunal for an order referred to in paragraph 20.4(1)(a) in respect of the complaint,
(c) in the case where the Commissioner makes an application to the Tribunal for the orders referred to in paragraph 20.4(1)(b) in respect of the complaint, the day on which the Tribunal makes a determination that the complainant was not subject to a reprisal taken by the person, and
(d) the day on which the disciplinary action is taken as a result of a settlement approved by the Commissioner or an order of the Tribunal.
Prior disciplinary action cancelled
(4) Disciplinary action taken as a result of a settlement approved by the Commissioner or an order of the Tribunal cancels any prior disciplinary action.
Application
(5) This section applies despite Part IV of the Royal Canadian Mounted Police Act.
Investigations into Complaints
Designation of complaint investigator
19.7 (1) The Commissioner may designate a person as an investigator to investigate a complaint.
Informality
(2) Investigations into complaints are to be conducted as informally and expeditiously as possible.
Notice to chief executive
19.8 (1) When commencing an investigation, the investigator must notify the chief executive concerned and inform that chief executive of the substance of the complaint to which the investigation relates.
Notice to others
(2) The investigator may also notify any other person he or she considers appropriate, including every person whose conduct is called into question by the complaint, and inform the person of the substance of the complaint.
Access
19.9 (1) If the investigator so requests, chief executives and public servants must provide the investigator with any facilities, assistance, information and access to their respective offices that the investigator may require for the purposes of the investigation.
Insufficient cooperation
(2) If the investigator concludes that he or she is unable to complete an investigation because of insufficient cooperation on the part of chief executives or public servants, he or she must make a report to the Commissioner to that effect under section 20.3.
Conciliation
Recommendation — conciliation
20. (1) At any time during the course of the investigation into a complaint the investigator may recommend to the Commissioner that a conciliator be appointed to attempt to bring about a settlement.
Appointment of conciliator
(2) The Commissioner may appoint a person as a conciliator for the purpose of attempting to bring about a settlement of the complaint.
Eligibility
(3) A person is not eligible to act as a conciliator in respect of a complaint if that person has already acted as an investigator in respect of that complaint.
Confidentiality
(4) Any information received by a conciliator in the course of attempting to reach a settlement of a complaint is confidential and may not be disclosed except with the consent of the person who gave the information.
Who may settle — remedy
20.1 (1) A settlement that relates to the remedy to be provided to the complainant must be agreed to by the complainant and the person with the authority to implement the remedy.
Who may settle — disciplinary action
(2) A settlement that relates to the disciplinary action, if any, that is to be imposed on a person identified by the investigator as being the person or one of the persons who took the alleged reprisal must be agreed to by the person identified by the investigator and the person with the authority to take the disciplinary action.
Referral of a settlement to Commissioner
20.2 (1) The terms of a settlement must be referred to the Commissioner for approval or rejection and the Commissioner must, without delay after approving or rejecting them, so certify and notify the parties to the settlement.
Complaint dismissed
(2) If the Commissioner approves a settlement that relates to the remedy to be provided to the complainant, the complaint to which it relates is dismissed.
Application barred
(3) If the Commissioner approves a settlement that relates to disciplinary action, if any, that is to be imposed on a person, the Commissioner may not apply to the Tribunal for an order referred to in paragraph 20.4(1)(b) in respect of the person.
Enforcement of settlement
(4) A settlement approved by the Commissioner may, for the purpose of enforcement, be made an order of the Federal Court on application to that Court by the Commissioner or a party to the settlement.
Decision After Investigation
Investigator’s report to Commissioner
20.3 As soon as possible after the conclusion of the investigation, the investigator must submit a report of his or her findings to the Commissioner.
Application to Tribunal
20.4 (1) If, after receipt of the report, the Commissioner is of the opinion that an application to the Tribunal in relation to the complaint is warranted, the Commissioner may apply to the Tribunal for a determination of whether or not a reprisal was taken against the complainant and, if the Tribunal determines that a reprisal was taken, for
(a) an order respecting a remedy in favour of the complainant; or
(b) an order respecting a remedy in favour of the complainant and an order respecting disciplinary action against any person or persons identified by the Commissioner in the application as being the person or persons who took the reprisal.
Exception
(2) The order respecting disciplinary action referred in paragraph (1)(b) may not be applied for in relation to a complaint the filing of which is permitted by section 19.2.
Factors
(3) In considering whether making an application to the Tribunal is warranted, the Commissioner must take into account whether
(a) there are reasonable grounds for believing that a reprisal was taken against the complainant;
(b) the investigation into the complaint could not be completed because of lack of cooperation on the part of one or more chief executives or public servants;
(c) the complaint should be dismissed on any ground mentioned in paragraphs 19.3(1)(a) to (d); and
(d) having regard to all the circumstances relating to the complaint, it is in the public interest to make an application to the Tribunal.
Dismissal of complaint
20.5 If, after receipt of the report, the Commissioner is of the opinion that an application to the Tribunal is not warranted in the circumstances, he or she must dismiss the complaint.
Notice
20.6 The Commissioner must notify in writing each of the following of his or her action under section 20.4 or 20.5:
(a) the complainant;
(b) if the complainant is a public servant, the complainant’s employer;
(c) if the complainant is a former public servant, the person or entity who was the complainant’s employer at the time the alleged reprisal was taken;
(d) the person or persons identified in the investigator’s report as being the person or persons who may have taken the alleged reprisal;
(e) the person or entity with the authority to take disciplinary action against any person referred to in paragraph (d); and
(f) every person, other than the complainant, or entity that was sent a notice under subsection 19.4(2) in respect of the complaint.
Public Servants Disclosure Protection Tribunal
Establishment
Establishment
20.7 (1) There is established a tribunal to be known as the Public Servants Disclosure Protection Tribunal consisting of a Chairperson and not less than two and not more than six other members to be appointed by the Governor in Council. All of the members must be judges of the Federal Court or a superior court of a province.
Tenure
(2) Each member of the Tribunal is to be appointed for a term of not more than seven years and holds office so long as he or she remains a judge.
Re-appointment
(3) A member of the Tribunal, on the expiration of a first or any subsequent term of office, is eligible to be re-appointed for a further term.
Temporary members
(4) Subject to subsection (5), in addition to the members appointed under subsection (1), any judge or former judge of the Federal Court of Canada or the Federal Court or of a superior or district court of a province may, on the request of the Chairperson of the Tribunal made with the approval of the Governor in Council, act as a temporary member of the Tribunal.
Consent required
(5) Except in relation to a former judge, no request may be made under subsection (4)
(a) to a judge of the Federal Court without the consent of the Chief Justice of that Court or of the Attorney General of Canada; or
(b) to a judge of a superior court of a province without the consent of the chief justice or chief judge of that court or of the attorney general of the province.
Approval of requests by Governor in Council
(6) The Governor in Council may approve the making of requests under subsection (4) in general terms or for particular periods or purposes, and may limit the number of persons who may act as temporary members of the Tribunal.
Remuneration of temporary members
(7) Each temporary member of the Tribunal who is a former judge is to be paid the remuneration determined by the Governor in Council.
Expenses
(8) Each member of the Tribunal and each temporary member of the Tribunal is entitled to be paid the expenses fixed by the Governor in Council.
Acting after expiration of appointment
(9) A member of the Tribunal whose appointment expires may, with the approval of the Chairperson, conclude any hearing that the member has begun and he or she is deemed to be a temporary member of the Tribunal for the purpose.
Administration
Registry
20.8 (1) There shall be a Registry of the Tribunal consisting of an office in the National Capital Region described in the schedule to the National Capital Act.
Registrar and other staff
(2) The registrar of the Tribunal and the other officers and employees necessary for the proper conduct of the work of the Tribunal are to be appointed in accordance with the Public Service Employment Act.
Technical experts
(3) If requested to do so by the Chairperson, the registrar of the Tribunal may engage persons having technical or special knowledge to assist or advise members of the Tribunal in any matter and may, with the approval of the Treasury Board, fix and pay their remuneration and reimburse their expenses.
Sittings
20.9 The Tribunal may sit at the times and at the places throughout Canada that it considers necessary or desirable for the proper conduct of its business.
Proceedings
Conduct of proceedings
21. (1) Proceedings before the Tribunal are to be conducted as informally and expeditiously as the requirements of natural justice and the rules of procedure allow.
Tribunal rules of procedure
(2) The Chairperson of the Tribunal may make rules of procedure governing the practice and procedure before the Tribunal, including, but not limited to, rules governing
(a) the giving of notices to parties;
(b) the addition of parties and interested persons to the proceedings;
(c) the summoning of witnesses;
(d) the production and service of documents;
(e) discovery proceedings; and
(f) pre-hearing conferences.
RCMP
(3) The Chairperson must consult with the Royal Canadian Mounted Police before making any rules and must ensure that the rules take that organization’s security and confidentiality needs into account.
Publication of proposed rules
(4) A copy of each rule that the Chairperson proposes to make must be published in the Canada Gazette, and a reasonable opportunity must be given to interested persons to make representations with respect to it.
Exception
(5) A proposed rule need not be published more than once, whether or not it has been amended as a result of any representations.
Applications by Commissioner
Assignment of member or members
21.1 (1) On receipt of an application made by the Commissioner under subsection 20.4(1) the Chairperson of the Tribunal must assign a member of the Tribunal to deal with the application, but the Chairperson may assign a panel of three members if he or she considers that the complexity of the matter requires that it be dealt with by three members. Every decision of the member or panel is a decision of the Tribunal.
Chair of panel
(2) If a panel of three members has been assigned, the Chairperson must designate one of them to chair the proceedings, but the Chairperson must chair the proceedings if he or she is a member of the panel.
Powers
21.2 (1) The member or panel may
(a) in the same manner and to the same extent as a superior court of record, summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce any documents and things that the member or panel considers necessary for the full hearing and consideration of the application;
(b) administer oaths;
(c) subject to subsection (2), receive and accept any evidence and other information, whether on oath or by affidavit or otherwise, that the member or panel sees fit, whether or not that evidence or information is or would be admissible in a court of law;
(d) lengthen or shorten any time limit established by the rules of procedure; and
(e) decide any procedural or evidentiary question.
Conciliators as witnesses
(2) A conciliator appointed to settle the complaint is not a competent or compellable witness at a hearing.
Witness fees
(3) Any person summoned to attend a hearing is entitled, at the discretion of the member or panel, to receive the same fees and allowances as those paid to persons summoned to attend before the Federal Court.
Hearing may be in camera
21.3 A hearing before the Tribunal may be held in camera at the request of any party if the party establishes to the satisfaction of the Tribunal that the circumstances of the case so require.
Determination — paragraph 20.4(1)(a)
21.4 (1) On application made by the Commissioner for an order referred to in paragraph 20.4(1)(a) the Tribunal must determine whether the complainant has been subject to a reprisal and, if it so determines, the Tribunal may make an order granting a remedy to the complainant.
Parties
(2) The parties in respect of the application are the Commissioner and
(a) the complainant;
(b) if the complainant is a public servant, the complainant’s employer; and
(c) if the complainant is a former public servant, the person or entity who was the complainant’s employer at the time the alleged reprisal was taken.
Addition of party
(3) If the Tribunal is of the opinion that a person who has been identified as being a person who may have taken the alleged reprisal may be directly affected by a determination of the Tribunal, the Tribunal may add that person as a party.
Determination — paragraph 20.4(1)(b)
21.5 (1) On application made by the Commissioner for the orders referred to in paragraph 20.4(1)(b) the Tribunal must determine whether the complainant has been subject to a reprisal and whether the person or persons identified by the Commissioner in the application as having taken the alleged reprisal actually took it. If it determines that a reprisal was taken, the Tribunal may, regardless of whether or not it has determined that the reprisal was taken by the person or persons named in the application, make an order granting a remedy to the complainant.
Parties
(2) The parties in respect of proceedings held for the purpose of subsection (1) are the Commissioner and
(a) the complainant;
(b) if the complainant is a public servant, the complainant’s employer;
(c) if the complainant is a former public servant, the person or entity who was the complainant’s employer at the time the alleged reprisal was taken; and
(d) the person or persons identified in the application as being the person or persons who may have taken the alleged reprisal.
Reasons
(3) The Tribunal must issue written reasons for its decisions under subsection (1) as soon as possible.
Order respecting disciplinary action
(4) After issuing the reasons under subsection (3), the Tribunal may make an order respecting the disciplinary action to be taken against any person who was determined by it to have taken the reprisal.
Parties
(5) The parties in respect of proceedings held for the purpose of subsection (4) are the Commissioner, the person against whom the disciplinary action would be taken and, for the purpose of making submissions regarding disciplinary action on behalf of the person or entity who would be required to implement the order if it were made, any person designated by the Tribunal.
Rights of parties
21.6 (1) Every party must be given a full and ample opportunity to participate at any proceedings before the Tribunal — including, but not limited to, by appearing at any hearing, by presenting evidence and by making representations — and to be assisted or represented by counsel, or by any person, for that purpose.
Duty of Commissioner
(2) The Commissioner must, in proceedings before the Tribunal, adopt the position that, in his or her opinion, is in the public interest having regard to the nature of the complaint.
Limitation — proceedings relating to remedy
(3) With respect to the portions of proceedings that relate solely to the remedy, if any, to be ordered in favour of the complainant, the Tribunal may, despite subsection (1), limit the participation of any person or persons identified as being the person or persons who may have taken the alleged reprisal.
Remedies
21.7 (1) To provide an appropriate remedy to the complainant, the Tribunal may, by order, require the employer or the appropriate chief executive, or any person acting on their behalf, to take all necessary measures to
(a) permit the complainant to return to his or her duties;
(b) reinstate the complainant or pay compensation to the complainant in lieu of reinstatement if, in the Tribunal’s opinion, the relationship of trust between the parties cannot be restored;
(c) pay to the complainant compensation in an amount not greater than the amount that, in the Tribunal’s opinion, is equivalent to the remuneration that would, but for the reprisal, have been paid to the complainant;
(d) rescind any measure or action, including any disciplinary action, and pay compensation to the complainant in an amount not greater than the amount that, in the Tribunal’s opinion, is equivalent to any financial or other penalty imposed on the complainant;
(e) pay to the complainant an amount equal to any expenses and any other financial losses incurred by the complainant as a direct result of the reprisal; or
(f) compensate the complainant, by an amount of not more than $10,000, for any pain and suffering that the complainant experienced as a result of the reprisal.
Royal Canadian Mounted Police Act
(2) The Tribunal may make an order under subsection (1) in relation to a member of the Royal Canadian Mounted Police despite subsections 42(4) and (6), 45.16(7) and 45.26(6) of the Royal Canadian Mounted Police Act.
Disciplinary action
21.8 (1) The Tribunal may, by order, require the Governor in Council, the employer or the appropriate chief executive, or any person acting on their behalf, to take all necessary measures to take the disciplinary action, including termination of employment or revocation of appointment, specified by the Tribunal against any person named in the application who was determined by it to have taken the reprisal.
Factors
(2) In making the order the Tribunal must take into account the factors ordinarily considered by employers when they discipline their employees, including, but not limited to,
(a) the gravity of the reprisal;
(b) the level of responsibility inherent in the position that the person occupies;
(c) the person’s previous employment record;
(d) whether the reprisal was an isolated incident;
(e) the person’s rehabilitative potential; and
(f) the deterrent effect of the disciplinary action.
Additional factors
(3) In making the order the Tribunal must also take into account
(a) the extent to which the nature of the reprisal discourages the disclosure of wrongdoing under this Act; and
(b) the extent to which inadequate disciplinary action in relation to the reprisal would have an adverse effect on confidence in public institutions.
Grievance precluded
(4) The person against whom disciplinary action is taken as a result of an order made under subsection (1) may not initiate a grievance or other similar procedure under an Act of Parliament or a collective agreement in respect of the disciplinary action.
Restriction — RCMP
(5) The disciplinary action that the Tribunal may order with respect to a member of the Royal Canadian Mounted Police is limited to a disciplinary action referred to in subsection 41(1), or a sanction referred to in subsection 45.12(3), of the Royal Canadian Mounted Police Act, or any combination of them.
Royal Canadian Mounted Police Act
(6) The Tribunal may make an order under subsection (1) in relation to a member of the Royal Canadian Mounted Police despite subsections 42(4) and (6), 45.16(7) and 45.26(6) of the Royal Canadian Mounted Police Act.
Royal Canadian Mounted Police Act
(7) An order made under subsection (1) in relation to a member of the Royal Canadian Mounted Police may be implemented by the Governor in Council or Commissioner of the Royal Canadian Mounted Police despite subsection 12(2) and Part IV of the Royal Canadian Mounted Police Act.
Filing of orders in Federal Court
21.9 (1) The Commissioner must, on the request in writing of any person or employer affected by any order of the Tribunal, file a certified copy of the order, exclusive of the reasons for the order, in the Federal Court, unless, in his or her opinion,
(a) there is no indication of failure or likelihood of failure to comply with the order; or
(b) there is other good reason why the filing of the order in the Federal Court would serve no useful purpose.
Effect of filing
(2) An order of the Tribunal becomes an order of the Federal Court when a certified copy of the order is filed in that court, and it may subsequently be enforced as such.
202. (1) Paragraph 22(a) of the Act is replaced by the following:
(a) provide information and advice regarding the making of disclosures under this Act and the conduct of investigations by the Commissioner;
(2) Paragraphs 22(g) and (h) of the Act are replaced by the following:
(g) review the results of investigations into disclosures and those commenced under section 33 and report his or her findings to the persons who made the disclosures and to the appropriate chief executives;
(h) make recommendations to chief executives concerning the measures to be taken to correct wrongdoings and review reports on measures taken by chief executives in response to those recommendations; and
(i) receive, review, investigate and otherwise deal with complaints made in respect of reprisals.
203. Sections 24 and 25 of the Act are replaced by the following:
Right to refuse
24. (1) The Commissioner may refuse to deal with a disclosure or to commence an investigation — and he or she may cease an investigation — if he or she is of the opinion that
(a) the subject-matter of the disclosure or the investigation has been adequately dealt with, or could more appropriately be dealt with, according to a procedure provided for under another Act of Parliament;
(b) the subject-matter of the disclosure or the investigation is not sufficiently important;
(c) the disclosure was not made in good faith or the information that led to the investigation under section 33 was not provided in good faith;
(d) the length of time that has elapsed since the date when the subject-matter of the disclosure or the investigation arose is such that dealing with it would serve no useful purpose;
(e) the subject-matter of the disclosure or the investigation relates to a matter that results from a balanced and informed decision-making process on a public policy issue; or
(f) there is a valid reason for not dealing with the subject-matter of the disclosure or the investigation.
Adjudicative decisions
(2) The Commissioner must refuse to deal with a disclosure or to commence an investigation if he or she is of the opinion that the subject-matter of the disclosure or the investigation relates solely to a decision that was made in the exercise of an adjudicative function under an Act of Parliament, including a decision of the Commissioner of the Royal Canadian Mounted Police under Part IV or V of the Royal Canadian Mounted Police Act.
Notice of refusal
(3) If the Commissioner refuses to deal with a disclosure or to commence an investigation, he or she must inform the person who made the disclosure, or who provided the information referred to in section 33, as the case may be, and give reasons why he or she did so.
Delegation
25. (1) The Commissioner may delegate to any employee in the Office of the Public Sector Integrity Commissioner any of his or her powers and duties under this Act, except
(a) the power to delegate under this section;
(b) the power to decide not to deal with a complaint filed under subsection 19.1(1);
(c) the power in section 20.2 to approve or reject a settlement;
(d) the power in section 20.4 to apply to the Tribunal;
(e) the power in section 20.5 to dismiss a complaint;
(f) the duties in paragraphs 22(g) and (h) to review the result of investigations, to report findings and to make recommendations;
(g) the power in section 24 to refuse to deal with a disclosure or to commence an investigation, the power in that section to cease an investigation and the duty in that section to provide reasons;
(h) the power to issue, in the exercise of any powers referred to in subsection 29(1), a subpoena or other request or summons to appear before the Commissioner or a person appointed to conduct an investigation;
(i) the power in section 33 to commence another investigation;
(j) the power in section 34 to refer a matter to another authority;
(k) the power in subsection 35(1) to remit information;
(l) the duty or power in any of sections 36 to 38 in relation to making a report; and
(m) the power to make a financial award under section 53.1.
Restriction concerning certain investigations
(2) The Commissioner may not delegate the conduct of an investigation that involves or may involve information relating to international relations, national defence, national security or the detection, prevention or suppression of criminal, subversive or hostile activities, except to one of a maximum of four officers or employees of the Office of the Public Sector Integrity Commissioner specifically designated by the Commissioner for the purpose of conducting those investigations.
Access to legal advice
25.1 (1) The Commissioner may provide access to legal advice to
(a) any public servant who is considering making a disclosure of wrongdoing under this Act;
(b) any person who is not a public servant who is considering providing information to the Commissioner in relation to any act or omission that may constitute a wrongdoing under this Act;
(c) any public servant who has made a disclosure under this Act;
(d) any person who is or has been involved in any investigation conducted by a senior officer or by or on behalf of the Commissioner under this Act;
(e) any public servant who is considering making a complaint under this Act regarding an alleged reprisal taken against him or her; or
(f) any person who is or has been involved in a proceeding under this Act regarding an alleged reprisal.
Condition
(2) The Commissioner may provide the access to legal advice only if the public servant or person satisfies the Commissioner that they do not have other access to legal advice at no cost to them.
Additional condition
(3) In addition to the condition referred to in subsection (2), the Commissioner may provide access to legal advice to a public servant referred to in paragraph (1)(a) or a person referred to in paragraph (1)(b) only if the Commissioner is of the opinion that the act or omission to which the disclosure or the information relates, as the case may be, likely constitutes a wrongdoing under this Act and that the disclosure or the provision of the information is likely to lead to an investigation being conducted under this Act.
Maximum payment
(4) The maximum amount that may be paid by the Commissioner under this section for legal advice provided or to be provided to any particular public servant or person in relation to any particular act or omission that may constitute a wrongdoing or reprisal is $1,500.
Maximum value
(5) If, for the purpose of this section, the Commissioner chooses to provide access to legal advice to any particular public servant or person in relation to a particular act or omission that may constitute a wrongdoing or reprisal through legal counsel employed in his or her office, the monetary value of the time spent by them in providing the legal advice may not be more than $1,500.
Deemed amount
(6) If the Commissioner is of the opinion that there are exceptional circumstances, the maximum amount provided for in subsections (4) and (5) is deemed to be $3,000.
Factors
(7) In determining the amount to be paid for legal advice, or the monetary value of the time to be spent providing it, as the case may be, the Commissioner must take into account
(a) the degree to which the public interest may be affected by the subject-matter of the disclosure or the information provided; and
(b) the degree to which the public servant or person seeking the legal advice may be adversely affected as a result of his or her involvement in making the disclosure, providing the information, making the complaint or participating in the investigation or the proceeding, as the case may be.
Grants and contributions
(8) For the purpose of providing access to legal advice under this section, the Commissioner may make grants or contributions in accordance with terms and conditions approved by the Treasury Board.
Solicitor-client basis
(9) The relationship between the public servant or person to whom access to legal advice is provided under this section and the legal counsel providing the advice is that of solicitor and client.
204. Subsection 26(1) of the Act is replaced by the following:
Purpose of investigations
26. (1) Investigations into disclosures and investigations commenced under section 33 are for the purpose of bringing the existence of wrongdoings to the attention of chief executives and making recommendations concerning corrective measures to be taken by them.
205. (1) Subsection 27(1) of the English version of the Act is replaced by the following:
Notice to chief executive
27. (1) When commencing an investigation, the Commissioner must notify the chief executive concerned and inform that chief executive of the substance of the disclosure to which the investigation relates.
(2) Subsection 27(3) of the English version of the Act is replaced by the following:
Opportunity to answer allegations
(3) It is not necessary for the Commissioner to hold any hearing and no person is entitled as of right to be heard by the Commissioner, but if at any time during the course of an investigation it appears to the Commissioner that there may be sufficient grounds to make a report or recommendation that may adversely affect any individual or any portion of the public sector, the Commissioner must, before completing the investigation, take every reasonable measure to give to that individual or the chief executive responsible for that portion of the public sector a full and ample opportunity to answer any allegation, and to be assisted or represented by counsel, or by any person, for that purpose.
206. Subsection 28(1) of the Act is replaced by the following:
Access
28. (1) If the Commissioner so requests for the purposes of an investigation, chief executives and public servants must provide him or her, or the person conducting the investigation, with any facilities, assistance, information and access to their respective offices that the Commissioner may require.
207. Subsection 29(1) of the Act is replaced by the following:
Powers
29. (1) In conducting an investigation, the Commissioner has all the powers of a commissioner under Part II of the Inquiries Act.
208. Section 36 of the English version of the Act is replaced by the following:
Request for notice of action
36. In making a report to a chief executive in respect of an investigation, the Commissioner may, if he or she considers it appropriate to do so, request that the chief executive provide the Commissioner, within a time specified in the report, with notice of any action taken or proposed to be taken to implement the recommendations contained in the report or reasons why no such action has been or is proposed to be taken.
209. The portion of section 37 of the Act before paragraph (a) is replaced by the following:
Report to appropriate Minister or governing council
37. If the Commissioner considers it necessary, he or she may report any matter that arises out of an investigation to the Minister responsible for the portion of the public sector concerned or, if the matter relates to a Crown corporation, to its board or governing council, including, but not limited to, when the Commissioner is of the opinion that
210. (1) Paragraph 38(2)(b) of the Act is replaced by the following:
(b) the number of disclosures received and complaints made in relation to reprisals, and the number of them that were acted on and those that were not acted on;
(2) Subsection 38(2) of the Act is amended by adding the following after paragraph (d):
(d.1) in relation to complaints made in relation to reprisals, the number of settlements, applications to the Tribunal and decisions to dismiss them;
(3) Section 38 of the Act is amended by adding the following after subsection (3):
Case report
(3.1) If the Commissioner makes a report to a chief executive in respect of an investigation into a disclosure or an investigation commenced under section 33 and there is a finding of wrongdoing in the report, the Commissioner must, within 60 days after making the report, make a case report to Parliament setting out
(a) the finding of wrongdoing;
(b) the recommendations, if any, set out in the report made to the chief executive;
(c) the time, if any, that was specified in the report to the chief executive for the chief executive to provide the notice referred to in section 36;
(d) the Commissioner’s opinion as to whether the chief executive’s response to the report to the chief executive, up to that point in time, is satisfactory; and
(e) the chief executive’s written comments, if any.
Opportunity to make representations
(3.2) Before making a case report, the Commissioner must provide the chief executive with a reasonable opportunity to make written comments.
211. The Act is amended by adding the following after section 38:
Report to Agency — disclosures under section 12
38.1 (1) Within 60 days after the end of each financial year, each chief executive must prepare and submit to the Agency a report for that financial year on the activities, in the portion of the public sector for which the chief executive is responsible, respecting disclosures made under section 12.
Report to Minister — disclosures under section 12
(2) Within six months after the end of each financial year, the President of the Agency must prepare and submit to the Minister a report for that financial year that provides an overview of the activities, throughout the public sector, respecting disclosures made under section 12.
Content
(3) The report under subsection (2) must set out
(a) the number of general inquiries relating to this Act;
(b) the number of disclosures received, the number of those that were acted on and the number of those that were not acted on;
(c) the number of investigations commenced as a result of disclosures made under section 12;
(d) whether there are any systemic problems that give rise to wrongdoings; and
(e) any other matter that the President of the Agency considers necessary.
Report to Parliament
(4) The Minister must cause the report to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the Minister receives the report.
212. Subsection 39.3(1) of the Act is replaced by the following:
Staff
39.3 (1) The Deputy Commissioner and the officers and employees that are necessary to enable the Commissioner to perform his or her duties and functions are to be appointed in accordance with the Public Service Employment Act.
Duties and powers of Deputy Commissioner
(1.1) The Deputy Commissioner exercises any of the powers and performs any of the duties and functions that the Commissioner assigns, other than the duty or power in section 38 to make a report.
213. The heading before section 40 of the Act is replaced by the following:
PROHIBITIONS
General Prohibitions
214. Section 40 of the English version of the Act is replaced by the following:
False statements
40. No person shall, in a disclosure of a wrongdoing or in the course of any investigation under this Act, knowingly make a false or misleading statement, either orally or in writing, to a supervisor, a senior officer, the Commissioner or a person acting on behalf of or under the direction of any of them.
215. The Act is amended by adding the following after section 42:
Employers
Prohibition — employer
42.1 (1) No employer shall take any of the following measures against an employee by reason only that the employee has, in good faith and on the basis of reasonable belief, provided information concerning an alleged wrongdoing in the public sector to the Commissioner or, if the alleged wrongdoing relates to the Office of the Public Sector Integrity Commissioner, to the Auditor General of Canada — or by reason only that the employer believes that the employee will do so:
(a) take a disciplinary measure against the employee;
(b) demote the employee;
(c) terminate the employment of the employee;
(d) take any measure that adversely affects the employment or working conditions of the employee; or
(e) threaten to take any measure referred to in paragraphs (a) to (d).
Saving
(2) Nothing in subsection (1) impairs any right of an employee either at law or under an employment contract or collective agreement.
Meaning of “employer”
(3) For the purpose of subsection (1), “employer” does not include an employer in the public sector.
Contracts
Prohibition — termination of contract or withholding of payments
42.2 (1) A public servant or any person purporting to act on behalf of Her Majesty in right of Canada or a portion of the public sector shall not terminate any contract with Her Majesty in right of Canada or any portion of the public sector, or withhold any payment that is due and payable in respect of any such contract, by reason only that the other party to the contract or any of that other party’s employees has, in good faith and on the basis of reasonable belief, provided information concerning an alleged wrongdoing in the public sector to the Commissioner or, if the alleged wrongdoing relates to the Office of the Public Sector Integrity Commissioner, to the Auditor General of Canada.
Prohibition — entering into contract
(2) A public servant or any person purporting to act on behalf of Her Majesty in right of Canada or a portion of the public sector shall not, in considering whether to enter into a contract with a person, take into account that the person or any of the person’s employees has, in the past, in good faith and on the basis of reasonable belief, provided information concerning an alleged wrongdoing in the public sector to the Commissioner or, if the alleged wrongdoing relates to the Office of the Public Sector Integrity Commissioner, to the Auditor General of Canada.
Meaning of “contract”
(3) In this section, “contract” includes, but is not limited to, an agreement for the supply of goods or the provision of services, an agreement relating to real property or immoveables, a loan, a grant and a contribution, but does not include an agreement by a public servant, or by a person appointed by the Governor in Council or by a minister of the Crown, to perform the duties to which their employment or appointment relates.
OFFENCE
Offence and punishment
42.3 Every person who knowingly contravenes section 19 or contravenes any of sections 40 to 42.2 commits an offence and is guilty of
(a) an indictable offence and liable to a fine of not more than $10,000 or to imprisonment for a term of not more than two years, or to both that fine and that imprisonment; or
(b) an offence punishable on summary conviction and liable to a fine of not more than $5,000 or to imprisonment for a term of not more than six months, or to both that fine and that imprisonment.
216. Section 46 of the Act is renumbered as subsection 46(1) and is amended by adding the following:
Exceptions
(2) Subsection (1) does not apply to
(a) the Commissioner or any person acting on behalf of or under the direction of the Commissioner, with respect to the Commissioner’s participation in any proceedings before the Tribunal; or
(b) a person designated as an investigator under section 19.7 with regard to his or her participation in the investigation for which he or she was so designated.
217. (1) The portion of subsection 49(1) of the Act before paragraph (a) is replaced by the following:
Restriction
49. (1) Subject to subsections (2) and (3), when referring any matter under section 34 or making a report under section 38, the Commissioner shall not disclose any information that the Government of Canada or any portion of the public sector is taking measures to protect, including, but not limited to, information that
(2) Paragraph 49(3)(a) of the Act is replaced by the following:
(a) the disclosure is necessary to refer any matter under section 34 or to establish the grounds for any finding or recommendation in a report under section 38; and
218. The portion of section 51 of the Act before paragraph (b) is replaced by the following:
Saving
51. Subject to subsection 19.1(4), nothing in this Act is to be construed as prohibiting
(a) the presentation of an individual grievance under subsection 208(1) of the Public Service Labour Relations Act; or
219. The Act is amended by adding the following after section 51:
Power to temporarily assign other duties
51.1 (1) A chief executive may temporarily assign other duties to a public servant who is involved in a disclosure or a complaint in respect of a reprisal if the chief executive believes on reasonable grounds that the public servant’s involvement has become known in the public servant’s workplace or that the temporary assignment is necessary to maintain the effective operation of the workplace.
Public servants who may be assigned other duties
(2) For the purposes of this section, the public servants involved in a disclosure or a complaint in respect of a reprisal are
(a) the public servant who made the disclosure and every public servant who is the subject of the disclosure;
(b) the public servant who filed the complaint and every public servant who is alleged to have taken the reprisal to which the complaint relates; and
(c) every public servant who is a witness or potential witness in the investigation, if any, relating to the disclosure or in any proceeding dealing with the complaint.
Duration
(3) The assignment may be for a period of up to three months, but the chief executive may renew the assignment one or more times if he or she believes that the conditions giving rise to it continue to exist on the expiry of a previous period.
Duties
(4) Subject to subsection (7), the duties that may be assigned must be in the same portion of the public sector in which the public servant is employed and must be comparable to the public servant’s normal duties.
Consent
(5) Subsection (1) applies to a public servant, other than a public servant who is the subject of the disclosure or who is alleged to have taken the reprisal, as the case may be, only if the public servant consents in writing to the assignment. The assignment is deemed not to be a reprisal if the public servant’s consent is given.
Not disciplinary action
(6) The assignment of other duties to a public servant who is the subject of the disclosure or who is alleged to have taken the reprisal, as the case may be, is deemed not to be a disciplinary action.
Duties in other portion of the public sector
(7) A public servant may be temporarily assigned duties in another portion of the public sector if both the chief executive of that other portion and the public servant consent to the assignment and the duties are comparable to the public servant’s normal duties. The assignment is deemed not to be a reprisal or a disciplinary action if the public servant’s consent is given.
Judicial review
51.2 (1) For the purposes of section 18.1 of the Federal Courts Act,
(a) a public servant who has made a disclosure to the Commissioner under section 13 is deemed to be directly affected by any report made by the Commissioner in relation to the disclosure;
(b) a public servant or former public servant who files a complaint under subsection 19.1(1) is deemed to be directly affected by a decision of the Commissioner to refuse to deal with or to dismiss the complaint; and
(c) a party to a proceeding before the Tribunal is deemed to be directly affected by a decision of the Tribunal in relation to that proceeding.
Rights of action
(2) Nothing in this Act affects any right of action that a public servant may otherwise have in relation to any act or omission giving rise to a dispute that does not relate to his or her terms or conditions of employment.
Authority to act for Commissioner of the Royal Canadian Mounted Police
51.3 The Commissioner of the Royal Canadian Mounted Police may authorize a Deputy or Assistant Commissioner of the Royal Canadian Mounted Police to exercise the powers or perform the duties and functions of the Commissioner of the Royal Canadian Mounted Police as a chief executive in respect of section 11, subsection 19.4(2), paragraph 19.6(1)(b), subsections 19.8(1) and 19.9(1), paragraphs 22(g) and (h), subsections 26(1), 27(1) and (3), 28(1) and 29(3) and sections 36 and 50.
220. The Act is amended by adding the following after section 53:
AWARDS
Awards
53.1 If a finding of wrongdoing results from a disclosure made under this Act or from the provision of information to the Commissioner referred to in section 33 and the Commissioner is of the opinion that the person who made the disclosure or provided the information has shown courage in defending the public interest, the Commissioner may
(a) pay to the person a financial award in an amount of not more than $1,000; or
(b) make any other award to the person that the Commissioner, in his or her discretion, considers to be appropriate in the circumstances, the value of which may not be more than $1,000.
221. Subsection 54.1(1) of the Act is replaced by the following:
Transitional — staff
54.1 (1) Each person employed in the Agency in the administrative unit known as the Office of the Public Service Integrity Officer assumes, on the coming into force of this section, a position in the Office of the Public Sector Integrity Commissioner.
222. Section 55 of the Act is replaced by the following:
55. The Access to Information Act is amended by adding the following in numerical order:
Public Sector Integrity Commissioner
16.4 The Public Sector Integrity Commissioner shall refuse to disclose any record requested under this Act that contains information
(a) obtained or created by him or her or on his or her behalf in the course of an investigation into a disclosure made under the Public Servants Disclosure Protection Act or an investigation commenced under section 33 of that Act; or
(b) received by a conciliator in the course of attempting to reach a settlement of a complaint filed under subsection 19.1(1) of that Act.
Public Servants Disclosure Protection Act
16.5 The head of a government institution shall refuse to disclose any record requested under this Act that contains information created for the purpose of making a disclosure under the Public Servants Disclosure Protection Act or in the course of an investigation into a disclosure under that Act.
55.1 Schedule I to the Act is amended by adding the following in alphabetical order under the heading “Other Government Institutions”:
Office of the Public Sector Integrity Commissioner
Commissariat à l’intégrité du secteur public
Registry of the Public Servants Disclosure Protection Tribunal
Greffe du Tribunal de la protection des fonctionnaires divulgateurs d’actes répréhensibles
223. Section 56 of the Act is replaced by the following:
56. The schedule to the Canada Evidence Act is amended by adding the following after item 19:
20. The Public Sector Integrity Commissioner, for the purposes of sections 26 to 35 of the Public Servants Disclosure Protection Act.
R.S., c. F-7; 2002, c. 8, s. 14
Federal Courts Act
56.1 Subsection 28(1) of the Federal Courts Act is amended by striking out the word “and” at the end of paragraph (o), by adding the word “and” at the end of paragraph (p) and by adding the following after paragraph (p):
(q) the Public Servants Disclosure Protection Tribunal established by the Public Servants Disclosure Protection Act.
R.S., c. F-11
Financial Administration Act
56.2 Schedule I.1 to the Financial Administration Act is amended by adding the following in alphabetical order in column I:
Office of the Public Sector Integrity Commissioner
Commissariat à l’intégrité du secteur public
and a corresponding reference in column II to the “President of the Treasury Board”.
56.3 Schedule I.1 to the Act is amended by adding the following in alphabetical order in column I:
Registry of the Public Servants Disclosure Protection Tribunal
Greffe du Tribunal de la protection des fonctionnaires divulgateurs d’actes répréhensibles
and a corresponding reference in column II to the “Minister of Canadian Heritage”.
56.4 Schedule IV to the Act is amended by adding the following in alphabetical order:
Office of the Public Sector Integrity Commissioner
Commissariat à l’intégrité du secteur public
Registry of the Public Servants Disclosure Protection Tribunal
Greffe du Tribunal de la protection des fonctionnaires divulgateurs d’actes répréhensibles
R.S., c. 31 (4th Supp.)
Official Languages Act
56.5 Subsection 24(3) of the Official Languages Act is amended by adding the following after paragraph (b):
(b.1) the Office of the Public Sector Integrity Commissioner;
224. Section 57 of the Act is replaced by the following:
57. Subsection 9(3) of the Personal Information Protection and Electronic Documents Act is amended by striking out the word “or” at the end of paragraph (c.1), by adding the word “or” at the end of paragraph (d) and by adding the following after paragraph (d):
(e) the information was created for the purpose of making a disclosure under the Public Servants Disclosure Protection Act or in the course of an investigation into a disclosure under that Act.
225. Sections 58 and 58.1 of the Act are replaced by the following:
58. The Privacy Act is amended by adding the following in numerical order:
Public Sector Integrity Commissioner
22.2 The Public Sector Integrity Commissioner shall refuse to disclose any personal information requested under subsection 12(1) that was
(a) obtained or created by him or her or on his or her behalf in the course of an investigation into a disclosure made under the Public Servants Disclosure Protection Act or an investigation commenced under section 33 of that Act; or
(b) received by a conciliator in the course of attempting to reach a settlement of a complaint filed under subsection 19.1(1) of that Act.
Public Servants Disclosure Protection Act
22.3 The head of a government institution shall refuse to disclose personal information requested under subsection 12(1) that was created for the purpose of making a disclosure under the Public Servants Disclosure Protection Act or in the course of an investigation into a disclosure under that Act.
58.1 The schedule to the Act is amended by adding the following in alphabetical order under the heading “Other Government Institutions”:
Office of the Public Sector Integrity Commissioner
Commissariat à l’intégrité du secteur public
Registry of the Public Servants Disclosure Protection Tribunal
Greffe du Tribunal de la protection des fonctionnaires divulgateurs d’actes répréhensibles
226. Subsection 59(1) of the Act is repealed.
Coordinating Amendment
227. On the later of the day on which section 81 of the Parliament of Canada Act, as enacted by section 28 of this Act, comes into force and the day on which section 24 of the Public Servants Disclosure Protection Act comes into force ― or, if those days are the same day, then on that day ― section 24 of the Public Servants Disclosure Protection Act is amended by adding the following after subsection (2):
Jurisdiction of the Conflict of Interest and Ethics Commissioner
(2.1) The Commissioner must refuse to deal with a disclosure or to commence an investigation if he or she is of the opinion that the subject-matter of the disclosure or the investigation is within the jurisdiction of the Conflict of Interest and Ethics Commissioner under the Conflict of Interest Act and must refer the matter to the Conflict of Interest and Ethics Commissioner.
R.S., c. S-3
Salaries Act
228. The Salaries Act is amended by adding the following after section 1:
PUBLIC APPOINTMENTS COMMISSION
Establishment of Commission
1.1 The Governor in Council may establish a Public Appointments Commission consisting of a chairperson and not more than four other members to perform such functions as the Governor in Council may specify, and may appoint the chairperson and other members and fix their remuneration and expenses.
Coming into Force
Order in council
229. Section 3.1 of the Access to Information Act, as enacted by section 144 of this Act, as well as sections 145 to 151, 156, 159 to 162, 164 to 179, 183, 184 and 186 to 193 of this Act and any provisions enacted by those sections come into force on a day or days to be fixed by order of the Governor in Council.
PART 4
Explanatory Notes
Clause 202: (1) and (2) Relevant portion of section 22:
22. The duties of the Commissioner under this Act are to
(a) provide advice to public servants who are considering making a disclosure under this Act;
...
(g) review the results of investigations and report his or her findings to the persons who made the disclosures and to the appropriate chief executives; and
(h) make recommendations to chief executives concerning the measures to be taken to correct wrongdoings and review reports on measures taken by chief executives in response to those recommendations.
Clause 203: Existing text of sections 24 and 25:
24. (1) The Commissioner may refuse to deal with a disclosure or cease an investigation if he or she is of the opinion that
(a) the subject-matter of the disclosure is one that could more appropriately be dealt with, initially or completely, according to a procedure provided for under another Act of Parliament;
(b) the subject-matter of the disclosure is not sufficiently important or the disclosure is not made in good faith;
(c) the length of time that has elapsed between the date when the subject-matter of the disclosure arose and the date when the disclosure was made is such that dealing with the disclosure would serve no useful purpose;
(d) the disclosure relates to a matter that results from a balanced and informed decision-making process on a public policy issue; or
(e) there is a valid reason for not dealing with the disclosure.
(2) The Commissioner must refuse to deal with a disclosure or must cease an investigation if he or she is of the opinion that the subject-matter of the disclosure relates solely to a decision that was made in the exercise of an adjudicative function under an Act of Parliament, including a decision of the Commissioner of the Royal Canadian Mounted Police under Part IV or V of the Royal Canadian Mounted Police Act.
(3) If the Commissioner refuses to deal with a disclosure or ceases an investigation under this Act, he or she must inform the person who made the disclosure and give reasons why he or she did so.
25. (1) The Commissioner may delegate to any employee of the Office of the Public Sector Integrity Commissioner any of his or her powers and duties under this Act, except
(a) the power to delegate under this section;
(b) the duties in paragraphs 22(g) and (h) to review the result of investigations, to report findings and to make recommendations;
(c) the power in section 24 to refuse to deal with a disclosure and the duty in that section to provide reasons for the refusal;
(d) the power to issue, in the exercise of any powers referred to in subsection 29(1), a subpoena or other request or summons to appear before the Commissioner or a person appointed to conduct an investigation;
(e) the power in section 33 to commence another investigation;
(f) the power in section 34 to refer a matter to another authority;
(g) the power in subsection 35(1) to remit information; and
(h) the duty or power in any of sections 36 to 38 in relation to making a report.
(2) The Commissioner may not delegate the conduct of any investigation that involves or may involve information relating to international relations, national defence, national security or the detection, prevention or suppression of criminal, subversive or hostile activities, except to one of a maximum of four officers or employees of the Office of the Public Sector Integrity Commissioner specifically designated by the Commissioner for the purpose of conducting those investigations.
Clause 204: Existing text of subsection 26(1):
26. (1) Investigations under this Act are for the purpose of bringing the existence of wrongdoings to the attention of chief executives and making recommendations concerning corrective measures to be taken by them.
Clause 205 (1): Existing text of subsection 27(1):
27. (1) When commencing an investigation under this Act, the Commissioner must notify the chief executive concerned and inform that chief executive of the substance of the disclosure to which the investigation relates.
(2) Existing text of subsection 27(3):
(3) It is not necessary for the Commissioner to hold any hearing and no person is entitled as of right to be heard by the Commissioner, but if at any time during the course of an investigation under this Act it appears to the Commissioner that there may be sufficient grounds to make a report or recommendation that may adversely affect any individual or any portion of the public sector, the Commissioner must, before completing the investigation, take every reasonable measure to give to that individual or the chief executive responsible for that portion of the public sector a full and ample opportunity to answer any allegation, and to be assisted or represented by counsel, or by any person, for that purpose.
Clause 206: Existing text of subsection 28(1):
28. (1) If the Commissioner so requests, chief executives and public servants must provide him or her, or the person conducting an investigation, with any facilities, assistance, information and access to their respective offices that the Commissioner may require for the carrying out of his or her duties under this Act.
Clause 207: Existing text of subsection 29(1):
29. (1) In conducting any investigation under this Act, the Commissioner has all the powers of a commissioner under Part II of the Inquiries Act.
Clause 208: Existing text of section 36:
36. In making a report to a chief executive in respect of an investigation under this Act, the Commissioner may, if he or she considers it appropriate to do so, request that the chief executive provide the Commissioner, within a time specified in the report, with notice of any action taken or proposed to be taken to implement the recommendations contained in the report or reasons why no such action has been or is proposed to be taken.
Clause 209: Relevant portion of section 37:
37. If the Commissioner considers it necessary, he or she may report a matter to the Minister responsible for the portion of the public sector concerned or, if the matter relates to a Crown corporation, to its board or governing council, including, but not limited to, when the Commissioner is of the opinion that
Clause 210: (1) and (2) Relevant portion of subsection 38(2):
(2) The annual report must set out
...
(b) the number of disclosures received and the number of those that were acted on and those that were not acted on;
(3) New.
Clause 211: New.
Clause 212: Existing text of subsection 39.3(1):
39.3 (1) The officers and employees that are necessary to enable the Commissioner to perform his or her duties and functions are to be appointed in accordance with the Public Service Employment Act.
Clause 213: Existing text of the heading:
PROHIBITIONS
Clause 214: Existing text of section 40:
40. No person shall, in a disclosure of a wrongdoing or in the course of any investigation under this Act of a wrongdoing, knowingly make a false or misleading statement, either orally or in writing, to a supervisor, a senior officer, the Commissioner or a person acting on behalf of or under the direction of any of them.
Clause 215: New.
Clause 216: New.
Clause 217: (1) Relevant portion of subsection 49(1):
49. (1) Subject to subsections (2) and (3), when referring any matter under section 34 or making a special or annual report under this Act, the Commissioner shall not disclose any information that the Government of Canada or any portion of the public sector is taking measures to protect, including, but not limited to, information that
(2) Relevant portion of subsection 49(3):
(3) The Commissioner may disclose any information referred to in subsection (1) if, in his or her opinion,
(a) the disclosure is necessary to refer any matter under section 34 or to establish the grounds for any finding or recommendation in a special or annual report under this Act; and
Clause 218: Relevant portion of section 51:
51. Subject to subsection 20(4), nothing in this Act is to be construed as prohibiting
(a) a person from presenting a grievance under section 91 of the Public Service Staff Relations Act; or
Clause 219: New.
Clause 220: New.
Clause 221: Existing text of subsection 54.1(1):
54.1 (1) Each person employed in the Public Service Human Resources Management Agency of Canada in the administrative unit known as the Office of the Public Service Integrity Officer assumes, on the coming into force of this section, a position in the Office of the Public Sector Integrity Commissioner.
Clause 222: Existing text of section 55:
55. Section 16 of the Access to Information Act is amended by adding the following after subsection (1):
(1.1) If the record came into existence less than five years before the request, the head of a government institution may refuse to disclose any record requested under this Act that contains information
(a) prepared in relation to or as a result of a disclosure or an investigation under the Public Servants Disclosure Protection Act; or
(b) obtained by a supervisor or a senior officer designated under subsection 10(2) of that Act, or by the Public Sector Integrity Commissioner, in relation to or as a result of a disclosure or an investigation under that Act, if the information identifies, or could reasonably be expected to lead to the identification of, a public servant who made a disclosure under that Act or who cooperated in an investigation under that Act.
Clause 223: Existing text of section 56:
56. The schedule to the Canada Evidence Act is amended by adding the following after item 19:
20. The Public Sector Integrity Commissioner, for the purposes of the Public Servants Disclosure Protection Act.
Clause 224: Existing text of section 57:
57. Subsection 9(3) of the Personal Information Protection and Electronic Documents Act is amended by striking out the word “or” at the end of paragraph (c.1), by adding the word “or” at the end of paragraph (d) and by adding the following after paragraph (d):
(e) the information came into existence less than five years before it is requested and the information was
(i) prepared in relation to or as a result of a disclosure or an investigation under the Public Servants Disclosure Protection Act; or
(ii) collected or used by a supervisor or a senior officer designated under subsection 10(2) of that Act, or by the Public Sector Integrity Commissioner, in relation to or as a result of a disclosure or an investigation under that Act, if the information identifies, or could reasonably be expected to lead to the identification of, a public servant who made a disclosure under that Act or who cooperated in an investigation under that Act.
Clause 225: Existing text of sections 58 and 58.1:
58. Section 22 of the Privacy Act is amended by adding the following after subsection (1):
(1.1) If the information came into existence less than five years before the request, the head of a government institution may refuse to disclose any personal information requested under subsection 12(1) that was
(a) prepared in relation to or as a result of a disclosure or an investigation under the Public Servants Disclosure Protection Act; or
(b) obtained by a supervisor or a senior officer designated under subsection 10(2) of that Act, or by the Public Sector Integrity Commissioner, in relation to or as a result of a disclosure or an investigation under that Act, if the information identifies, or could reasonably be expected to lead to the identification of, a public servant who made a disclosure under that Act or who cooperated in an investigation under that Act.
58.1 The schedule to the Act is amended by adding the following in alphabetical order under the heading “Other Government Institutions”:
Office of the Public Sector Integrity Commissioner
Commissariat à l’intégrité du secteur public
Clause 226: Existing text of subsection 59(1):
59. (1) On the later of the coming into force of section 2 of the Public Service Modernization Act and the coming into force of subsection 20(1) of this Act,
(a) paragraph 20(1)(b) of this Act is replaced by the following:
(b) in relation to any other public servant who is employed in any portion of the public sector referred to in Schedule I, IV or V to the Financial Administration Act or a person whose complaint relates to a reprisal taken while he or she was so employed, the Public Service Labour Relations Board; and
(b) paragraph 51(a) of this Act is replaced by the following:
(a) the presentation of an individual grievance under subsection 208(1) of the Public Service Labour Relations Act; or
Salaries Act
Clause 228: New.