Public Servants Disclosure Protection Act

1. When did the Public Servants Disclosure Protection Act (PSDPA) come into force?
2. How does the PSDPA differ from the Treasury Board’s Policy on the Internal Disclosure of Information Concerning Wrongdoing in the Workplace?
3. What is wrongdoing?
4. What is a disclosure of wrongdoing?
5. Can I make a disclosure directly to the public?
6. How does the disclosure process work?
   • What if I am not a public servant and want to provide information about wrongdoing?
7. How will anyone know if a public sector organization has properly acted on a wrongdoing?
8. What are the sanctions for someone who is found to have committed a wrongdoing?
9. What is the definition of "reprisal" under the PSDPA?
10. How do I make a complaint of reprisal?
11. What are the remedies for a public servant who has been the subject of reprisal related to a disclosure?
12. What is the role of the Public Servants Disclosure Protection Tribunal?
13. Does the PSDPA provide protection for non-public servants?
14. What kind of training is there for public servants about disclosures and reprisal protection?
15. Is there anywhere I can go to get legal advice about the Act?

1. When did the Public Servants Disclosure Protection Act (PSDPA) come into force?

The PSDPA came into force on April 15, 2007, replacing the Treasury Board’s Policy on the Internal Disclosure of Information Concerning Wrongdoing in the Workplace. All internal disclosures brought through the previous policy will continue as though they had been made under the Public Servants Disclosure Protection Act. Investigations will continue in a seamless fashion.

2. How does the PSDPA differ from the Treasury Board’s Policy on the Internal Disclosure of Information Concerning Wrongdoing in the Workplace?

The PSDPA:

• applies to the broader federal public sector;
• provides substantial protections in law from reprisal for disclosures made in good faith;
• outlines a process for dealing with reprisal;
• includes a Public Servants Disclosure Protection Tribunal that can order a settlement or corrective action such as compensation or disciplinary action;
• strengthens the confidentiality that can be offered to those making disclosures; and
• establishes the Public Sector Integrity Commissioner as an agent of Parliament.

3. What is wrongdoing?

The Public Servants Disclosure Protection Act defines wrongdoing* in the public sector as:

• violating any Act of Parliament or any Act of the legislatures of Canada's provinces and territories. This includes violating any regulations made under these Acts;
• misusing public funds or a public asset;
• gross mismanagement;
• doing something—or failing to do something—that creates a substantial and specific danger to the health, safety, or life of persons or to the environment;
• seriously breaching any code of conduct that applies to the public sector; and
• knowingly directing or counselling a person to commit wrongdoing as defined above.

*For exact legal language, view the Act.

4. What is a disclosure of wrongdoing?

A disclosure of wrongdoing is the filing of any information by a public servant that could show that a wrongdoing has been committed or is about to be committed. Information showing that a public servant has been asked to commit a wrongdoing is also considered to be a disclosure of wrongdoing.

A disclosure of wrongdoing is protected if it is made in good faith and in accordance with the provisions of the PSDPA.

5. Can I make a disclosure directly to the public?

As a public servant, you are strongly encouraged to raise issues of suspected wrongdoing with your supervisor, the Senior Officer for Disclosure or the Public Sector Integrity Commissioner, who is an independent agent of Parliament.

A disclosure to the public is protected only if there is not enough time to make it in accordance with the PSDPA and you believe that there has been a serious breach of federal or provincial laws, or an imminent risk to the life, health and safety of persons or the environment.

It is important to remember that in making a disclosure under the Act, a public servant must follow established procedures or practices for the secure handling, storage, transportation and transmission of information or documents.

6. How does the disclosure process work?

Any public servant has a choice of making a disclosure to:

• their supervisor;
• the Senior Officer for Disclosure; or
• the Public Service Integrity Commissioner.

If the disclosure is to a supervisor, the supervisor passes it on to the Senior Officer for Disclosure, in accordance with an organization’s internal disclosure procedures.

The Senior Officer for Disclosure is designated by each chief executive in the Public Service to establish an internal disclosure process. The process involves assessing the disclosure, investigating it, where necessary, and reporting on it, if there are any findings. (Due to size, small organizations may be exempt from designating a Senior Officer for Disclosure, in which case, disclosures may be made to the Public Service Integrity Commissioner.)

The Integrity Commissioner can perform the same roles as the Senior Officer for Disclosure, and can be contacted in a number of ways:

• 60 Queen Street, 7th Floor, Ottawa ON K1P 5Y7;
• Telephone 613-941-6400;
• Toll free 1-866-941-6400;
• Fax 613-941-6535; or
• online.

6a. What if I am not a public servant and want to provide information about wrongdoing?

The Act is not limited to public servants; any person outside the public sector can provide information about a possible wrongdoing in, or relating to, the public sector to the Public Service Integrity Commissioner.

7. How will anyone know if a public sector organization has properly acted on a wrongdoing?

There are several provisions in the Act to make information public in situations of founded wrongdoing.

• Where the disclosure is made internally, and the Senior Officer for Disclosure investigated and found wrongdoing had occurred, the chief executive of that organization must provide public access to information describing the wrongdoing and the action taken in response.
• The Canada Public Service Agency is also required to make an annual report to Parliament describing disclosure activities across the public sector.
• When the disclosure is made to the Public Sector Integrity Commissioner, the Commissioner must present a report to Parliament within 60 days of a disclosure investigation discovering that a wrongdoing had occurred. The report sets out the finding of wrongdoing, the recommendations, if any, made to the organization's chief executive, the chief executive's response to these recommendations and the corrective measures taken or planned. In the report, the Integrity Commissioner also comments on whether the organization's response is satisfactory.
• In addition, the Integrity Commissioner may make special reports to Parliament at any time and must prepare an annual report to Parliament.

8. What are the sanctions for someone who is found to have committed a wrongdoing?

Specific sanctions will depend on the type and seriousness of the wrongdoing. In addition to any sanctions that may be required by law, chief executives have the authority to apply administrative and disciplinary penalties. These may include:

• the return of all monies;
• financial penalties;
• reprimands;
• suspensions;
• demotions; and
• termination of employment

9. What is the definition of "reprisal" under the PSDPA?

The Public Servants Disclosure Protection Act clearly stipulates that no public servant shall be subject to any reprisal for having made a disclosure in accordance with this Act.

Reprisal is any measure taken against a public servant because they made a protected disclosure or co-operated in an investigation into a possible wrongdoing. Reprisal includes:

• disciplinary measures;
• demotion of the public servant;
• termination of employment;
• any measure that adversely affects the employment or working conditions of the public servant; or
• a threat to do any of those things or to direct someone else to do them.

10. How do I make a complaint of reprisal?

The process for a public servant to bring a complaint of reprisal to the Public Sector Integrity Commissioner is similar to the process for making a disclosure of wrongdoing. However, the complaint must be filed within 60 days* of the day on which the complainant knew or ought to have known when reprisal action was taken.

A public servant should provide the following information, preferably in writing:

• the nature of the complaint and why the action would constitute reprisal;
• the name of the person(s) alleged to have committed reprisal action;
• the date and description of the act of reprisal, and any other relevant information; and
• their name, telephone number and address so the Integrity Commissioner may contact them for more information.

*The Integrity Commissioner has discretion to allow a complaint to be filed after the 60-day period if he or she believes that it is appropriate considering the circumstances of the complaint.

The Integrity Commissioner may refuse to deal with reprisal complaints if:

• the subject matter of the complaint has been adequately dealt with, or
• it could more appropriately be dealt with using a procedure provided for under another Act or a collective agreement.

If no settlement is reached after the conclusion of the investigation, the Integrity Commissioner may apply to the Public Servants Disclosure Protection Tribunal. The Tribunal will determine whether or not an act of reprisal was taken against the complainant and will:

• apply remedial measures as outlined in question 12, below; or
• consider ordering disciplinary action against those who engaged in reprisal.

11. What are the remedies for a public servant who has been the subject of reprisal related to a disclosure?

There are a number of possible remedial measures if an act of reprisal is found to have occurred, including:

• permitting the person to return to their duties;
• reinstating the person or ordering a payment of compensation in lieu of reinstatement;
• ordering a payment of compensation for lost income as a result of reprisal;
• overturning any disciplinary action or measures and compensating the person for financial penalties imposed;
• ordering the reimbursement of any expenses or financial losses incurred by the person as a direct result of reprisal; or
• awarding up to $10,000 for pain and suffering that the complainant experienced as a result of reprisal.

12. What is the role of the Public Servants Disclosure Protection Tribunal?

The Tribunal receives applications from the Public Sector Integrity Commissioner to hear and deal with reprisal complaints. The Tribunal will determine if reprisal has occurred, and, if so, make orders for the appropriate remedial measures in favour of the complainant. The Tribunal may also consider ordering disciplinary action against those who have engaged in reprisal.

13. Does the PSDPA provide protection for non-public servants?

Any person who, in good faith, provides information to the Integrity Commissioner about a possible wrongdoing in the federal public sector is also protected under the Act. The Act prohibits:

• employers from retaliating against their own employees for assisting an investigation of the Integrity Commissioner; and
• government contracting and grant authorities from retaliating against contractors or recipients of grants because that person or their employee(s) provided information to the Integrity Commissioner.

Non-public servants who believe they have suffered reprisal may have their complaints dealt with through existing labour relations processes that ordinarily apply to them. They may also apply to the Integrity Commissioner to obtain free legal advice if they meet the criteria under the PSDPA.

14. What kind of training is there for public servants about disclosures and reprisal protection?

The Public Service Agency of Canada is responsible for:

• providing information for public servants about disclosures and reprisal protection; and
• providing communication tools to assist organizations in meeting their learning and communication requirements concerning the PSDPA.

The Agency is working with departments, agencies, Crown corporations, bargaining agents, professional communities and key stakeholders to ensure that employees across the public sector understand the purpose and processes of the PSDPA.

15. Is there anywhere I can go to get legal advice about the Act?

Yes, the Integrity Commissioner has the authority to provide public servants, and any Canadian who may be considering making a disclosure of wrongdoing or who may be thinking about providing information about wrongdoing in the federal public sector, access to legal advice valued up to $1,500. Access to legal advice may be extended to public servants who are considering making a complaint of reprisal to the Commissioner, and any person who is involved in an investigation or proceeding under the Public Servants Disclosure Protection Act.

The Public Sector Integrity Commissioner may provide access to legal advice to a qualifying person if the Commissioner is satisfied that the person does not have other access to free legal advice. To qualify, the person must also demonstrate the likelihood of a wrongdoing that might lead to an investigation. The Commissioner may choose to provide access to legal advice valued to a maximum of $1,500 to a qualifying person. In exceptional circumstances, the maximum amount can be increased to $3,000.

For more specific information, please visit Access to Independent Legal Advice.