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Annual Report on the Public Servants Disclosure Protection Act 2015-16

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ISSN 2292-048X
Catalogue No. BT1-18E-PDF

© Her Majesty the Queen in Right of Canada,
represented by the President of the Treasury Board, 2016

Table of Contents

Introduction

Section 38.1 of the Public Servants Disclosure Protection Act (PSDPA) requires that the Chief Human Resources Officer prepare an annual report for the President of the Treasury Board to table in Parliament. The report must provide information on activities related to the disclosures made in public sector organizations that are subject to the Act. This report, the ninth annual report under the PSDPA, covers the reporting requirements for the period of , to .

The PSDPA establishes procedures for handling allegations of wrongdoing and complaints of reprisal, and provides concrete support for grounding public sector culture firmly in values and ethics. For an overview of the Act and definitions of key terms used in this report, please refer to Parts E and F of the Appendix.

This report includes information on disclosures made according to internal procedures established under the Act, as reported to the Office of the Chief Human Resources Officer (OCHRO) by the senior officers for disclosure or the chief executives of public sector organizations. It does not include disclosures or reprisal complaints made to the Office of the Public Sector Integrity Commissioner of Canada, which are reported separately by the Commissioner to Parliament.

Reported Disclosure Activity

There are 134 active organizations in the federal public sector that are currently subject to the Act.Footnote 1 Of these organizations, 116 have informed OCHRO of their senior officer for disclosure appointments made under the Act. Pursuant to subsection 10(4) of the Act, 18 organizations have declared that they would not establish internal disclosure procedures or appoint a senior officer for disclosure because the size of the organization made it impractical to do so.

Subsection 38.1(1) of the Act requires chief executives to prepare a report on the activities related to disclosures made in their organizations and to submit it to the Chief Human Resources Officer within 60 days after the end of every fiscal year. The following is a summary of these reports. Statistics from previous years are included for comparison.

Disclosure Activity 2010–2016
Disclosure Activity 2015–16 2014–15 2013–14 2012–13 2011–12 2010–11

Table 1 Notes

Table 1 Note 1

Disclosures where action was taken to determine whether wrongdoing has occurred, including preliminary analysis, fact finding and investigation, and where that determination was made during the reporting period (as defined in Part F of the Appendix). Does not include disclosures received that have been carried over into 2016–17.

Return to table 1 note a referrer

Table 1 Note 2

Disclosures received that were immediately rejected or that were immediately referred to another more appropriate recourse mechanism (as defined in Part F of the Appendix).

Return to table 1 note b referrer

Table 1 Note 3

This figure has been amended to reflect files received in 2014–15 and carried over to 2015–16 that were further determined to include either additional disclosures or fewer disclosures than initially identified. As a result, the 2015–16 figure for "Number of cases carried over on the basis of disclosures made the previous year" has been amended.

Return to table 1 note c referrer

Table 1 Note 4

Figures have been amended to reflect that a file received in 2013–14 by the Royal Canadian Mounted Police (RCMP), initially identified as including 1 disclosure, was further determined to include 13 disclosures. As a result of this determination, amendments have been made to the 2013–14 figures corresponding to "Number of disclosures received under the Act," "Total number of disclosures handled" and "Number of disclosures received that were action upon." The figures that appear in the column for 2014–15 have been adjusted to reflect this information.

Return to table 1 note d referrer

Number of active organizations 134 146 147 149 155 154
Number of general inquiries related to the Act 198 229 206 198 225 277
Number of organizations that reported inquiries 29 36 31 37 32 33
Number of disclosures received under the Act 281 200 194table 1 note d 207 197 291
Number of organizations that reported disclosures 31 28 28 30 28 33
Number of referrals resulting from a disclosure made in another public sector organization 5 1 0 9 4 3
Number of cases carried over on the basis of disclosures made the previous year 99table 1 note c 98 93 100 118 75
Total number of disclosures handled
(new disclosures + referrals + cases carried over)		 385 299 287table 1 note d 316 319 369
Number of disclosures received that were acted upontable 1 note a 133 123 123table 1 note d 130 186 350
Number of disclosures received that were not acted upontable 1 note b 124 85 73 91 47 19
Number of investigations commenced as a result of disclosures received 56 78 39 74 78 111
Number of disclosures received that led to a finding of wrongdoing 7 13 17 18 24 9
Number of organizations that reported findings of wrongdoing 4 4 5 6 10 7
Number of disclosures received that led to corrective measures 31 17 29 40 74 31
Number of organizations that reported corrective measures 7 8 9 13 15 16
Number of organizations that reported finding systemic problems that gave rise to wrongdoing 2 0 3 2 1 2
Number of organizations that did not disclose information about findings of wrongdoing within 60 days 2 2 2 5 3 7

In accordance with paragraph 11(1)(c) of the Act, it is the responsibility of organizations to provide public access to information describing findings of wrongdoing and any follow-up action taken. Consequently, OCHRO does not collect or report on the specifics of findings of wrongdoing by organizations.

Statistics on reports of organizational activities related to disclosures made under the Act are available in Part A of the Appendix. These statistics provide a useful snapshot of activity under the PSDPA. The following considerations should be noted:

  • Disclosures can be made to a supervisor, a senior officer for disclosure or the Public Sector Integrity Commissioner. The choice of a particular channel for disclosure cannot be construed as a reflection of a lack of trust in other channels.
  • It is difficult to compare statistics across organizations because their cultures vary. Issues may be dealt with through different mechanisms in different organizations.
  • Given that an anonymous disclosure does not meet the definition of a "disclosure made under the Act," this report does not include situations where information about a possible wrongdoing is provided anonymously.Footnote 2
  • When completing their annual report under the PSDPA, organizations are asked to count each allegation of wrongdoing as a separate disclosure and report it as such in their submission to OCHRO. As a result, the report captures the number of potential incidents of wrongdoing to be investigated, which is a higher number than that of public servants making disclosures.
  • The following are the most common reasons provided by organizations for not acting upon disclosures:
    • The individual making the disclosure was referred to another, more appropriate, recourse mechanism because of the nature of the allegation(s) (e.g., grievance procedure); and
    • The disclosure did not meet the definition of wrongdoing under section 8 of the Act.
  • Although the Canadian Armed Forces (CAF), the Canadian Security Intelligence Service (CSIS) and Communications Security Establishment Canada (CSEC) are excluded from the PSDPA, under section 52 they are required to establish procedures applicable to their organization for the disclosure of wrongdoing, including the protection of persons who disclose wrongdoing. These procedures must, in the opinion of the Treasury Board, be similar to those set out in the PSDPA. CSIS procedures were approved in , CSEC's procedures were approved in , and the CAF's procedures were approved in .

Appendix: Summary of Organizational Activity Related to Disclosures Under the Act

A. Organizations reporting activity under the Act in 2015–16

Organization General inquiries Disclosures Investigations commenced Disclosures that led to
Received Referred Carried over from 2014–15 Acted upon Not acted upon Carried over into 2016–17 A finding of wrongdoing Corrective measures

table 2 Notes

Table 2 Note 1

In 2015, the name of the organization was changed from Environment Canada to Environment and Climate Change Canada.

Return to table 2 note a referrer

Table 2 Note 2

In 2015, the name of the organization was changed from Foreign Affairs, Trade and Development Canada to Global Affairs Canada.

Return to table 2 note b referrer

Table 2 Note 3

In 2015, the name of the organization was changed from Citizenship and Immigration Canada to Immigration, Refugees and Citizenship Canada.

Return to table 2 note c referrer

Table 2 Note 4

In 2015, the name of the organization was changed from Aboriginal Affairs and Northern Development Canada to Indigenous and Northern Affairs Canada.

Return to table 2 note d referrer

Table 2 Note 5

In 2015, the name of the organization was changed from Industry Canada to Innovation, Science and Economic Development Canada.

Return to table 2 note e referrer

Table 2 Note 6

In 2015, the name of the organization was changed from Public Works and Government Services Canada to Public Services and Procurement Canada.

Return to table 2 note f referrer

Table 2 Note 7

Upon assessment of the files carried over from 2014–15, it was determined that these files included fewer disclosures than initially identified.

Return to table 2 note g referrer

Table 2 Note 8

Upon assessment of the files carried over from 2014–15, it was determined that these files included additional disclosures to those initially identified.

Return to table 2 note h referrer

Table 2 Note 9

Upon assessment of the files carried over from 2014–15, two files were not acted upon, because they were referred to another more appropriate recourse mechanism.

Return to table 2 note i referrer

Agriculture and Agri-Food Canada 1 0 0 0 0 0 0 0 0 0
Atomic Energy of Canada Limited 1 2 0 0 2 0 0 2 0 0
Bank of Canada 1 0 0 0 0 0 0 0 0 0
Canada Border Services Agency 6 93 0 25 7 70 41 0 0 0
Canada Mortgage and Housing Corporation 3 1 0 0 1 0 0 1 0 0
Canada Economic Development Agency for Quebec Regions 0 1 0 0 1 0 0 1 0 1
Canada Revenue Agency 15 3 0 3 3 1 2 2 0 0
Canadian Air Transport Security Authority 0 0 0 4 4 0 0 0 0 0
Canadian Food Inspection Agency 23 15 0 0 0 0 15 1 0 0
Canadian Grain Commission 4 0 0 0 0 0 0 0 0 0
Canadian Space Agency 1 2 0 0 0 2 0 0 0 0
Correctional Service Canada 2 29 0 2table 2 note g 10 0 21 4 1 0
Department of Justice Canada 0 1 0 0 1 0 0 1 1 1
Employment and Social Development Canada 10 13 0 1 1 10 3 0 0 0
Environment and Climate Change Canadatable 2 note a 3 13 0 1 11 1 2 4 0 2
Fisheries and Oceans Canada 3 0 0 0 0 0 0 0 0 0
Global Affairs Canadatable 2 note b 6 1 0 4table 2 note h 5 0 0 0 4 4
Health Canada 8 8 0 3table 2 note h 5 2 4 0 0 0
Immigration, Refugees and Citizenship Canadatable 2 note c 0 4 0 1 1 3 1 1 0 0
Indigenous and Northern Affairs Canadatable 2 note d 0 2 0 0 2 0 0 0 0 0
Infrastructure Canada 2 0 4 0 0 0 4 1 0 0
Innovation, Science and Economic Development Canadatable 2 note e 1 0 0 0 0 0 0 0 0 0
Marine Atlantic Inc. 0 2 0 0 2 0 0 1 0 0
National Capital Commission 20 5 0 1 4 2 0 2 0 0
National Defence 7 11 1 11 16 6 1 4 0 0
National Energy Board 0 1 0 0 1 0 0 0 0 0
Natural Resources Canada 2 4 0 1table 2 note i 3 2 0 2 0 0
Office of the Auditor General of Canada 0 5 0 0 0 5 0 0 0 0
Office of the Superintendent of Financial Institutions Canada 0 1 0 0 1 0 0 1 0 0
Parks Canada 5 0 0 0 0 0 0 0 0 0
Public Health Agency of Canada 4 0 0 3 3 0 0 0 0 0
Public Services and Procurement Canadatable 2 note f 6 22 0 28table 2 note h 27 11 12 7 0 21
Royal Canadian Mounted Police 12 8 0 4table 2 note h 0 0 12 0 0 0
Shared Services Canada 1 0 0 2 1 0 1 0 0 0
Staff of the Non-Public Funds, Canadian Forces 0 1 0 0 1 0 0 1 0 0
Statistics Canada 0 1 0 0 1 0 0 0 0 0
Transportation Safety Board of Canada 0 1 0 0 1 0 0 1 0 0
Transport Canada 6 26 0 5 14 9 8 17 0 0
Treasury Board of Canada Secretariat 1 2 0 0 2 0 0 0 0 1
Veterans Affairs Canada 0 2 0 0 1 0 1 2 1 1
VIA Rail Canada Inc. 43 1 0 0 1 0 0 0 0 0
Western Economic Diversification Canada 1 0 0 0 0 0 0 0 0 0
Total 198 281 5 99 133 124 128 56 7 31

B. Organizations that reported no activities related to disclosure in the reporting period

  1. Administrative Tribunals Support Service of Canada
  2. Atlantic Canada Opportunities Agency
  3. Atlantic Pilotage Authority Canada
  4. Business Development Bank of Canada
  5. Canada Council for the Arts
  6. Canada Deposit Insurance Corporation
  7. Canada Development Investment Corporation
  8. Canada Post
  9. Canada School of Public Service
  10. Canada Science and Technology Museums Corporation
  11. Canadian Broadcasting Corporation
  12. Canadian Centre for Occupational Health and Safety
  13. Canadian Commercial Corporation
  14. Canadian Environmental Assessment Agency
  15. Canadian Heritage
  16. Canadian Institutes of Health Research
  17. Canadian Museum for Human Rights
  18. Canadian Museum of History and Canadian War Museum
  19. Canadian Museum of Nature
  20. Canadian Northern Economic Development Agency
  21. Canadian Nuclear Safety Commission
  22. Canadian Radio-television and Telecommunications Commission
  23. Canadian Tourism Commission
  24. Canadian Transportation Agency
  25. Civilian Review and Complaints Commission for the RCMP
  26. Courts Administration Service
  27. Defence Construction Canada
  28. Department of Finance Canada
  29. Energy Supplies Allocation Board
  30. Export Development Canada
  31. Farm Credit Canada
  32. Farm Products Council of Canada
  33. Federal Bridge Corporation
  34. Federal Economic Development Agency for Southern Ontario
  35. Financial Transactions and Reports Analysis Centre of Canada
  36. Great Lakes Pilotage Authority Canada
  37. Immigration and Refugee Board of Canada
  38. Indian Oil and Gas Canada
  39. International Development Research Centre
  40. International Joint Commission (Canadian Section)
  41. Laurentian Pilotage Authority Canada
  42. Library and Archives Canada
  43. Military Police Complaints Commission of Canada
  44. National Arts Centre
  45. The National Battlefields Commission
  46. National Gallery of Canada
  47. National Research Council Canada
  48. Natural Sciences and Engineering Research Council of Canada
  49. Northern Pipeline Agency Canada
  50. Office of the Chief Electoral Officer
  51. Office of the Commissioner for Federal Judicial Affairs Canada
  52. Office of the Correctional Investigator of Canada
  53. Office of the Information Commissioner of Canada
  54. Office of the Public Sector Integrity Commissioner of Canada
  55. Office of the Registrar of the Supreme Court of Canada
  56. Office of the Secretary to the Governor General
  57. Office of the Superintendent of Bankruptcy Canada
  58. Pacific Pilotage Authority Canada
  59. Parole Board of Canada
  60. Patented Medicine Prices Review Board Canada
  61. Polar Knowledge CanadaFootnote 3
  62. PPP Canada
  63. Privy Council Office
  64. Public Prosecution Service of Canada
  65. Public Safety Canada
  66. Public Sector Pension Investment Board
  67. Public Service Commission of Canada
  68. RCMP External Review Committee
  69. Ridley Terminals Inc.
  70. Royal Canadian Mint
  71. Social Sciences and Humanities Research Council of Canada
  72. Statistical Survey Operations
  73. Status of Women Canada
  74. Veterans Review and Appeal Board

C. Organizations that do not have a senior officer for disclosure or internal procedures as of the end of the reporting period, pursuant to subsection 10(4) of the Act

  1. Canada Lands Company Limited
  2. Canadian Dairy Commission
  3. Canadian Human Rights Commission
  4. Canadian Intergovernmental Conference Secretariat
  5. Canadian Museum of Immigration at Pier 21
  6. Canadian Race Relations Foundation
  7. Copyright Board Canada
  8. Financial Consumer Agency of Canada
  9. Freshwater Fish Marketing Corporation
  10. Military Grievances External Review Committee
  11. National Film Board
  12. Office of the Commissioner of Lobbying of Canada
  13. Office of the Commissioner of Official Languages
  14. Office of the Privacy Commissioner of Canada
  15. Security Intelligence Review Committee
  16. Standards Council of Canada
  17. Telefilm Canada
  18. Truth and Reconciliation CommissionFootnote 4

D. Inactive organizations for the purposes of reporting

  1. Canada Emission Reduction Incentives Agency
  2. Canada Employment Insurance Commission
  3. Canada Investment and Savings
  4. Communication Canada
  5. Director of Soldier Settlement
  6. Jacques-Cartier and Champlain Bridges Inc.
  7. Law Commission of Canada
  8. The Director, The Veterans' Land Act
  9. Windsor-Detroit Bridge Authority

E. Overview of the Public Servants Disclosure Protection Act

Introduction

Section 38.1 of the Public Servants Disclosure Protection Act (PSDPA) requires that the President of the Treasury Board annually table the following information in Parliament for the activities respecting disclosures made in public sector organizations that are subject to the Act:

  • Number of general inquiries relating to the Act;
  • Number of disclosures received under the Act, and whether they were acted upon;
  • Number of investigations commenced;
  • Whether any systemic problems were found that led to wrongdoing; and
  • Any other matter that the Chief Human Resources Officer deems necessary.

Key elements of the Act

The PSDPA encourages employees in the public sector to come forward if they have reason to believe that serious wrongdoing has taken place, and it provides protections for employees against reprisal when they do so.

The Act allows any person to provide the Public Sector Integrity Commissioner with information about possible wrongdoing in the public sector. It also allows employees to make disclosures to their supervisors or to the senior officer for disclosure designated for their organization. The Act created the Public Servants Disclosure Protection Tribunal to address alleged cases of reprisal.

Through these provisions, the PSDPA enhances the ability of organizations to identify and resolve incidents of wrongdoing, while supporting employees who disclose wrongdoing and protecting them from reprisal.

The PSDPA requires allegations of wrongdoing to be treated with an appropriate degree of confidentiality. Organizations must protect any information they collect about disclosures, including the identities of those making disclosures and of other parties involved, subject to other Acts of Parliament and the principles of natural justice and procedural fairness. In this way, the PSDPA provides a fair and objective process for those against whom allegations are made.

The PSDPA amended the Access to Information Act and the Privacy Act to ensure that information created for the purpose of making a disclosure, or in the course of an investigation into a disclosure or reprisal complaint, cannot be released in response to requests for information under either of those Acts. To balance these provisions with the need for transparency for public sector wrongdoings, the PSDPA requires that chief executives and the Public Sector Integrity Commissioner provide prompt public access to information that describes incidents of wrongdoing found as a result of disclosures made under the Act, and any corrective action taken as a result.

The PSDPA establishes a procedure for the disclosure of alleged wrongdoing and complaints of reprisal in the public sector. More broadly, the Act supports a positive public sector culture that is grounded in values and ethics. It requires that the Government of Canada establish a code of conduct applicable to the entire federal public sector, and that each public sector organization establish a code of conduct consistent with the public sector code.

The PSDPA also requires that the President of the Treasury Board promote ethical practices and a positive environment for disclosing wrongdoing in the public sector. Ultimately, the Act helps to sustain and support an ethical culture, thereby reinforcing the integrity of the federal public sector.

F. Key terms

For the purposes of the Public Servants Disclosure Protection Act (PSDPA), and of this report, public servant denotes every person employed in the public sector. This includes the deputy heads and chief executives of public sector organizations, but it does not include other Governor in Council appointees (e.g., judges and boards of Crown corporations) or parliamentarians and their staff.

The PSDPA defines wrongdoing as any of the following actions in, or relating to, the public sector:

  • Violation of a federal or provincial law or regulation;
  • Misuse of public funds or assets;
  • Gross mismanagement in the public sector;
  • Serious breach of a code of conduct established under the Act;
  • Act or omission that creates a substantial and specific danger to the life, health and safety of Canadians or the environment; and
  • Knowingly directing or counselling a person to commit a wrongdoing.

A protected disclosure is a disclosure that is made in good faith by a public servant under the following conditions:

  • In accordance with the Act, to the public servant's immediate supervisor, senior officer for disclosure or the Public Sector Integrity Commissioner;
  • 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.

Furthermore, any person can provide information about public sector wrongdoing to the Public Sector Integrity Commissioner.

The PSDPA defines reprisal as any of the following measures taken against a public servant who has made a protected disclosure or who has, in good faith, cooperated in an investigation into a disclosure:

  • Any disciplinary measure;
  • Demotion of the public servant;
  • Termination of the employment of the public servant;
  • 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 a person to do them.

Each organization subject to the PSDPA is required to establish internal procedures to manage disclosures made in the organization. Organizations that are too small to establish their own internal procedures can request an exception under subsection 10(4) of the Act. In this case, disclosures related to the Act would be handled directly by the Public Sector Integrity Commissioner.

A senior officer for disclosure is the person appointed within each organization to receive and deal with disclosures made under the Act. Senior officers for disclosure have the following key leadership roles for implementing the Act in their organizations:

  • Providing information, advice and guidance to public servants regarding the organization's internal disclosure procedures, including the making of disclosures, the conduct of investigations into disclosures, and the handling of disclosures made to supervisors;
  • Receiving and recording disclosures and reviewing them to establish whether there are sufficient grounds for further action under the PSDPA;
  • Managing investigations into disclosures, including determining whether to deal with a disclosure under the PSDPA, initiate an investigation or cease an investigation;
  • Coordinating handling of a disclosure with the senior officer of another federal public sector organization, if a disclosure or an investigation into a disclosure involves that other organization;
  • Notifying, in writing, the person(s) who made a disclosure regarding the outcome of any review or investigation into the disclosure and regarding the status of actions taken on the disclosure, as appropriate; and
  • Reporting the findings of investigations, as well as any systemic problems that may give rise to wrongdoing, directly to his or her chief executive, with recommendations for corrective action, if any.

Other relevant terms

acting upon a disclosure:
Taking action to determine whether wrongdoing has occurred, including preliminary analysis, fact-finding and investigation. It also means that the determination of whether wrongdoing has occurred was made during the reporting period.
allegation of wrongdoing:
The communication of a potential instance of wrongdoing through a disclosure as defined in section 8 of the PSDPA. The allegation must be made in good faith, and the person making it must have reasonable grounds to believe that it is true.
disclosure:
The provision of information by a public servant to his or her immediate supervisor or to a senior officer for disclosure that includes one or more allegations of possible wrongdoing in the public sector, in accordance with section 12 of the PSDPA.
general inquiries:
Inquiries about procedures established under the PSDPA or about possible wrongdoings, not including actual disclosures.
investigation:
A formal investigation triggered by a disclosure.
not acting upon a disclosure:
Any immediate rejection of the disclosure once it is received, including an immediate referral of the employee making the disclosure to another more appropriate recourse mechanism.

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