Public Servants Disclosure Protection Act

This Act may be cited as the Public Servants Disclosure Protection Act.

The following definitions apply in this Act.

Agency[Repealed, 2010, c. 12, s. 1678]

chief executive means the deputy head or chief executive officer of any portion of the public sector, or the person who occupies any other similar position, however called, in the public sector. (administrateur général)

Commissioner means the Public Sector Integrity Commissioner appointed under subsection 39(1). (commissaire)

investigation means, for the purposes of sections 24, 25, 26 to 31, 33, 34, 36 and 37, an investigation into a disclosure and an investigation commenced under section 33. (enquête)

member of the Royal Canadian Mounted Police means a person who is a member or a special constable of the Royal Canadian Mounted Police or who is employed by that force under terms and conditions substantially the same as those of one of its members. (membre de la Gendarmerie royale du Canada)

Minister[Repealed, 2010, c. 12, s. 1678]

protected disclosure means a disclosure that is made in good faith and that is made by a public servant

in accordance with this Act;

in the course of a parliamentary proceeding;

in the course of a procedure established under any other Act of Parliament; or

when lawfully required to do so. (divulgation protégée)

public sector means However, subject to sections 52 and 53, public sector does not include the Canadian Forces, the Canadian Security Intelligence Service or the Communications Security Establishment. (secteur public)

the departments named in Schedule I to the Financial Administration Act and the other portions of the federal public administration named in Schedules I.1 to V to that Act; and

the Crown corporations and the other public bodies set out in Schedule 1.

public servant means every person employed in the public sector, every member of the Royal Canadian Mounted Police and every chief executive. (fonctionnaire)

reprisal means any of the following measures taken against a public servant because the public servant has made a protected disclosure or has, in good faith, cooperated in an investigation into a disclosure or an investigation commenced under section 33:

a disciplinary measure;

the demotion of the public servant;

the termination of employment of the public servant, including, in the case of a member of the Royal Canadian Mounted Police, a discharge or dismissal;

any measure that adversely affects the employment or working conditions of the public servant; and

a threat to take any of the measures referred to in any of paragraphs (a) to (d). (représailles)

senior officer means a senior officer designated under subsection 10(2). (agent supérieur)

Tribunal means the Public Servants Disclosure Protection Tribunal established under subsection 20.7(1). (Tribunal)

wrongdoing means a wrongdoing referred to in section 8. (acte répréhensible)

Every reference in this Act to a person who has taken a reprisal includes a person who has directed the reprisal to be taken.

[Repealed before coming into force, 2006, c. 9, s. 195]

The Governor in Council may, by order, amend

Schedule 1 by adding the name of any Crown corporation or other public body;

Schedule 2 by adding or deleting the name of any portion of the public sector that has a statutory mandate to investigate other portions of the public sector; and

Schedule 3 by adding or deleting any provision of any Act of Parliament.

The President of the Treasury Board must promote ethical practices in the public sector and a positive environment for disclosing wrongdoings by disseminating knowledge of this Act and information about its purposes and processes and by any other means that he or she considers appropriate.

The Treasury Board must establish a code of conduct applicable to the public sector.

The Treasury Board’s obligation under subsection (1) applies despite the provisions of the Financial Administration Act and of any other Act of Parliament that otherwise restrict the powers of the Treasury Board.

Before the code of conduct is established, the President of the Treasury Board must consult with the employee organizations certified as bargaining agents in the public sector.

The President of the Treasury Board must cause the code of conduct established by the Treasury Board to be tabled before each House of Parliament at least 30 days before it comes into force.

Every chief executive shall establish a code of conduct applicable to the portion of the public sector for which he or she is responsible.

The codes of conduct established by chief executives must be consistent with the code of conduct established by the Treasury Board.

The codes of conduct applicable to a portion of the public sector apply to every public servant employed in that portion of the public sector.

In the event of a conflict between the code of conduct established under subsection 5(1) or 6(1) and the code of conduct established under section 38 of the Royal Canadian Mounted Police Act, the code of conduct established under that section prevails to the extent of the conflict.

This Act applies in respect of the following wrongdoings in or relating to the public sector:

a contravention of any Act of Parliament or of the legislature of a province, or of any regulations made under any such Act, other than a contravention of section 19 of this Act;

a misuse of public funds or a public asset;

a gross mismanagement in the public sector;

an act or omission that creates a substantial and specific danger to the life, health or safety of persons, or to the environment, other than a danger that is inherent in the performance of the duties or functions of a public servant;

a serious breach of a code of conduct established under section 5 or 6; and

knowingly directing or counselling a person to commit a wrongdoing set out in any of paragraphs (a) to (e).

[Repealed, 2006, c. 9, s. 197]

In addition to, and apart from, any penalty provided for by law, a public servant is subject to appropriate disciplinary action, including termination of employment, if he or she commits a wrongdoing.

Each chief executive must establish internal procedures to manage disclosures made under this Act by public servants employed in the portion of the public sector for which the chief executive is responsible.

Each chief executive must designate a senior officer to be responsible for receiving and dealing with, in accordance with the duties and powers of senior officers set out in the code of conduct established by the Treasury Board, disclosures of wrongdoings made by public servants employed in the portion of the public sector for which the chief executive is responsible.

A chief executive may designate as a senior officer for the portion of the public sector for which the chief executive is responsible a person who is employed in any other portion of the public sector.

Subsections (1) and (2) do not apply to a chief executive if he or she declares, after giving notice to the Chief Human Resources Officer appointed under subsection 6(2.1) of the Financial Administration Act, that it is not practical to apply those subsections given the size of that portion of the public sector.

Each chief executive must

subject to paragraph (c) and any other Act of Parliament and to the principles of procedural fairness and natural justice, protect the identity of persons involved in the disclosure process, including that of persons making disclosures, witnesses and persons alleged to be responsible for wrongdoings;

establish procedures to ensure the confidentiality of information collected in relation to disclosures of wrongdoings; and

if wrongdoing is found as a result of a disclosure made under section 12, promptly provide public access to information that

describes the wrongdoing, including information that could identify the person found to have committed it if it is necessary to identify the person to adequately describe the wrongdoing, and

sets out the recommendations, if any, set out in any report made to the chief executive in relation to the wrongdoing and the corrective action, if any, taken by the chief executive in relation to the wrongdoing or the reasons why no corrective action was taken.

Nothing in paragraph (1)(c) requires a chief executive to provide public access to information the disclosure of which is subject to any restriction created by or under any Act of Parliament.

A public servant may disclose to his or her supervisor or to the senior officer designated for the purpose by the chief executive of the portion of the public sector in which the public servant is employed any information that the public servant believes could show that a wrongdoing has been committed or is about to be committed, or that could show that the public servant has been asked to commit a wrongdoing.

A public servant may disclose information referred to in section 12 to the Commissioner.

Nothing in this Act authorizes a public servant to disclose to the Commissioner a confidence of the Queen’s Privy Council for Canada in respect of which subsection 39(1) of the Canada Evidence Act applies or any information that is subject to solicitor-client privilege. The Commissioner may not use the confidence or information if it is disclosed.

A disclosure that a public servant is entitled to make under section 13 that concerns the Office of the Public Sector Integrity Commissioner may be made to the Auditor General of Canada who has, in relation to that disclosure, the powers, duties and protections of the Commissioner under this Act.

Despite sections 12 to 14, a public servant employed in a portion of the public sector that has a statutory mandate to investigate other portions of the public sector and that is named in Schedule 2 may disclose information under any of those sections only if the wrongdoing to which the information relates involves the portion of the public sector in which he or she is employed.

Sections 12 to 14 apply despite

section 5 of the Personal Information Protection and Electronic Documents Act, to the extent that that section relates to obligations set out in Schedule 1 to that Act relating to the disclosure of information; and

any restriction created by or under any other Act of Parliament on the disclosure of information, other than a restriction created by or under any provision set out in Schedule 3.

In making a disclosure under this Act, a public servant must

provide no more information than is reasonably necessary to make the disclosure; and

follow established procedures or practices for the secure handling, storage, transportation and transmission of information or documents, including, but not limited to, information or documents that the Government of Canada or any portion of the public sector is taking measures to protect.

A disclosure that a public servant may make under sections 12 to 14 may be made to the public if there is not sufficient time to make the disclosure under those sections and the public servant believes on reasonable grounds that the subject-matter of the disclosure is an act or omission that

constitutes a serious offence under an Act of Parliament or of the legislature of a province; or

constitutes an imminent risk of a substantial and specific danger to the life, health and safety of persons, or to the environment.

Subsection (1) does not apply in respect of information the disclosure of which is subject to any restriction created by or under any Act of Parliament, including the Personal Information Protection and Electronic Documents Act.

Nothing in subsection (1) affects the rights of a public servant to make to the public in accordance with the law a disclosure that is not protected under this Act.

Section 12, subsection 13(1) and sections 14 and 16 do not apply in respect of any information that is special operational information within the meaning of subsection 8(1) of the Foreign Interference and Security of Information Act.

Nothing in this Act relating to the making of disclosures is to be construed as applying to the dissemination of news and information by a person employed by the Canadian Broadcasting Corporation for that purpose.

Nothing in this Act relating to the making of disclosures is to be construed as affecting any obligation of a public servant to disclose, report or otherwise give notice of any matter under any other Act of Parliament.

No person shall take any reprisal against a public servant or direct that one be taken against a public servant.

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.

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.

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.

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.

A member or former member of the Royal Canadian Mounted Police may not make a complaint under subsection (1) in relation to any action under section 20.2, or any matter that is the subject of an investigation or proceeding under Part IV of the Royal Canadian Mounted Police Act, unless

he or she has exhausted every procedure available under that Act for dealing with the action or matter; and

the complaint is filed within 60 days after those procedures have been exhausted.

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.

The public servant may file the complaint within 60 days after the later of

the day on which section 19.1 comes into force, and

the day on which he or she knew or, in the opinion of the Commissioner, ought to have known that the reprisal was taken.

The Commissioner may refuse to deal with a complaint if he or she is of the opinion that

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;

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);

the complaint is beyond the jurisdiction of the Commissioner; or

the complaint was not made in good faith.

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.

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.

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.

The Commissioner must decide whether or not to deal with a complaint within 15 days after it is filed.

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.

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.

If the Commissioner decides not to deal with a complaint and sends the complainant a written notice setting out the reasons for that decision,

subsection 19.1(4) ceases to apply; and

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.

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.

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.

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.

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

the day on which the complaint is withdrawn or dismissed,

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

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.

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.

This section applies despite Part IV of the Royal Canadian Mounted Police Act.

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

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

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.

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,

subsection (1) does not apply; and

neither the Commissioner nor the Tribunal may deal with the issue of disciplinary action against that person.

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

the day on which the complaint is withdrawn or dismissed,

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,

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

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.

Disciplinary action taken as a result of a settlement approved by the Commissioner or an order of the Tribunal cancels any prior disciplinary action.

This section applies despite Part IV of the Royal Canadian Mounted Police Act.

The Commissioner may designate a person as an investigator to investigate a complaint.

Investigations into complaints are to be conducted as informally and expeditiously as possible.

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.

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.

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.

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.

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.

The Commissioner may appoint a person as a conciliator for the purpose of attempting to bring about a settlement of the complaint.

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.

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.

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.

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.

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.

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.

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.

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.

As soon as possible after the conclusion of the investigation, the investigator must submit a report of his or her findings to the Commissioner.

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

an order respecting a remedy in favour of the complainant; or

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.

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.

In considering whether making an application to the Tribunal is warranted, the Commissioner must take into account whether

there are reasonable grounds for believing that a reprisal was taken against the complainant;

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;

the complaint should be dismissed on any ground mentioned in paragraphs 19.3(1)(a) to (d); and

having regard to all the circumstances relating to the complaint, it is in the public interest to make an application to the Tribunal.

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.

The Commissioner must notify in writing each of the following of his or her action under section 20.4 or 20.5:

the complainant;

if the complainant is a public servant, the complainant’s employer;

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;

the person or persons identified in the investigator’s report as being the person or persons who may have taken the alleged reprisal;

the person or entity with the authority to take disciplinary action against any person referred to in paragraph (d); and

every person, other than the complainant, or entity that was sent a notice under subsection 19.4(2) in respect of the complaint.

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.

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.

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.

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.

Except in relation to a former judge, no request may be made under subsection (4)

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

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.

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.

Each temporary member of the Tribunal who is a former judge is to be paid the remuneration determined by the Governor in Council.

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.

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.

[Repealed, 2014, c. 20, s. 468]

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 before the Tribunal are to be conducted as informally and expeditiously as the requirements of natural justice and the rules of procedure allow.

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