Canadian Employment Law Today

4 Canadian HR Reporter, a Thomson Reuters business 2017 CASE IN POINT: WHISTLEBLOWING Trends in workplace whistleblowing — An HR primer The patchwork of legal protection for employee whistleblowers across Canada is getting denser BY NORM KEITH H uman resources professionals are being called upon to deal with a complex legal and ethical chal- lenge in the 21 st century — the employee whistleblower. Whistleblower protection is a growing employment law right that exists locally and internationally. In Ontario, for example, the Ontario Se - curities Commission (OSC) introduced a whistleblower program and hotline in Au- gust 2016 — administered by "e Office of the Whistleblower." e OSC has also stated that any terms of employment contracts that prohibit or discourage reporting could be a violation of the Ontario Securities Act (OSA). In addition, it is quasi-criminal of - fense under the OSA to take reprisal action against an employee who reports or plans to report potential violations of securities law. e OSC policy is similar to that in the United States and around the globe. Gov - ernments and regulators are providing more incentives for whistleblowers to "go public" about all types of corporate misconduct. For example, many of the health and safety com - plaints made to regulators across Canada every year are from anonymous whistle- blowers. erein lies a dilemma — does the employer encourage its own internal whis- tleblowing to achieve regulatory compli- ance, or does it risk individuals going behind its back for fear of reprisal and becoming anonymous government whistleblowers? Canadians are close neighbours and trad - ing partners with the United States and therefore are highly influenced by American legislative and enforcement initiatives relat- ing to whistleblowing. Canadian courts have also been called upon to deal with various issues arising from whistleblowers from for- eign countries. For example, the Supreme Court of Canada is the first national high court in the world to recognize and protect the role of whistleblowers from disclosure and criminal prosecution. In its decision World Bank Group v. Wallace, it addressed the subject of whistleblower immunity in an international corruption case. e Supreme Court confirmed that the World Bank Group did not waive their immunities by voluntarily providing that whistleblower information to Canadian law enforcement officials. is included two confidential tipsters who told the bank's in - vestigative unit that SNC-Lavalin was in the process of bribing Bangladeshi officials to grant the Canadian engineering firm a con- tract to supervise the Padma Bridge project. e court held that two of the five institu- tions that make up the World Bank Group are protected by the immunities in their constituent treaty, which Canada imple- mented in the Federal Bretton Woods and Related Agreements Act. ese immunities generally insulate members of the World Bank Group from being compelled by do - mestic court orders to produce their officials and documents in criminal prosecutions. While criminal defence lawyers may be concerned regarding the international orga - nization's immunity from domestic criminal disclosure obligations, employment lawyers may be concerned about the ability to pro- tect employers' confidential business infor- mation and encourage internal reporting of regulatory, employment or criminal activity in the workplace. Federal whistleblower laws in Canada Section 425.1 of the Canadian Crimi- nal Code offers protection to employee whistleblowers in all jurisdictions in the private and public sectors. It is a criminal offence for an employer or person acting on its behalf to engage in or threaten a re- prisal against an employee with the intent of keeping the employee from providing information about an offence under fed- eral or provincial legislation to a person whose duties include the enforcement of that law. Section 425.1 only applies to criminal or quasi-criminal misconduct, and employees are only protected if they approach a law enforcement official. ere is no protection if employees con- tact any other person or organization. An offence under s. 425.1 is a hybrid offence — this means the Crown may prosecute summarily or by indictment. If the Crown proceeds by indictment, the maximum term of imprisonment for violating s. 425.1 is five years. e monetary penalty for a corporation where the Crown pro- ceeds by indictment is unlimited. Federal public sector employees e Public Servants Disclosure Act (PS- DPA) provides protection to whistle- blowers in the federal public sector. e purpose of the PSDPA is to encourage public servants to disclose wrongdoings and protect them from reprisal. In com- parison to s. 425.1 of the Criminal Code, the scope of wrongdoing that may be dis- closed, as well as the individual that the employee may make the disclosure to, is broader. e PDSA provides that wrong- doings include a contravention of any Act of Parliament or of the legislature of a province, misuse of public funds or a public asset and gross mismanagement in the public sector may be disclosed to the Public Sector Integrity Commissioner, as well as a supervisor in the organization. Section 19 of the PSDPA provides that "no person shall take any reprisal against a public servant or direct that one be taken against a public servant." Sections 19.1(1) and (2) provide that where a public servant or former public servant believes, on rea - sonable grounds, that a reprisal has been taken against her, the public servant may file a complaint within 60 days with the Office of the Public Sector Integrity Commission - er, a new agency created under the PSDPA. e commissioner reviews all complaints and may investigate if there are grounds to believe a reprisal has been made. After in - vestigating, the commissioner may refer a complaint to the Public Servants Disclosure Protection Tribunal, a quasi-judicial body that adjudicates reprisal complaints. e tri - bunal has the power to order remedies and to make orders against a person who has en- gaged in a reprisal. In addition to any other applicable legal penalty, a public servant who has engaged in a reprisal may be subject to disciplinary action up to termination of employment as determined by the tribunal. e PSDPA, the commissioner and the tribunal have been the subject of criticism. Critics note that perpetrators can escape punishment under the PDSPA regime by pursuing employment in the private sector. Compounding this issue is the fact that the commissioner does not disclose the identi- ties of wrongdoers, which means that pro- spective employers do not became aware of prior misconduct. According to Transpar- ency International Canada, over a seven- year period, only six out of 140 reprisal cas- es were referred by the commissioner to the tribunal and the commissioner declined to ask the tribunal for disciplinary actions against the employers despite identifying specific acts of reprisal. As well, during Christiane Ouimet's three-year tenure as Integrity Commissioner from 2007 to 2010, no wrongdoing or reprisals were found among the more than 200 complaints filed. Provincial public sector employees Six of Canada's 10 provinces have public sector whistleblower legislation — Ontar-

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