Introduction

The purpose of the Public Servants Disclosure Protection Act (PSDPA) is to encourage employees in the public sector to come forward if they have reason to believe that serious wrongdoing has taken place and to provide protection to them against reprisal when they do so. It also provides a fair and objective process for those against whom allegations are made.

Good implementation of the PSDPA in the public sector should result in:

• Enhanced ability for organizations to identify and resolve disclosures and prevent reprisals
• Employees who feel supported and protected from reprisals when they disclose a wrongdoing
• Leaders who foster and model ethical leadership and inspire employees to do the right thing
• A sustained and supported ethical culture in a workplace of choice and
• Increased public trust and confidence in public sector organizations

Current Status

The PSDPA was amended by the Federal Accountability Act, which received Royal Assent on December 12, 2006. The PSDPA came into force, April 15, 2007. The Canada Public Service Agency (CPSA) is responsible for leadership and support to organizations in the implementation of the PSDPA.

Summary of the Act

Preamble: The public service of Canada is an important national institution. Through this Act, Parliament declares its intention to strengthen the integrity of the federal public service, including Crown corporations. The legislation commits the government to establishing a Code of Conduct for the entire public sector that will set out the values that should guide public servants in their work and professional conduct.

Application: The PSDPA applies to all employees in departments, agencies, boards, tribunals, separate employer agencies, parent Crown corporations, court administrations as well as their chief executives (heads of department or agency), and members of the Royal Canadian Mounted Police (RCMP). The Act excludes Ministers, members of Minister’s staffs, members of boards of directors of Crown corporations, Parliament and its institutions, federally appointed judges, Canadian Security Intelligence Service (CSIS), Communications Security Establishment (CSE) and the Canadian Forces. However, CSIS, CSE and the Canadian Forces are required to create comparable disclosure protection regimes.

The term “public servant” as defined in the PSDPA applies to all persons employed in the public sector. “Public sector” is itself defined as including:

• departments and other portions of the public service of Canada 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
• Crown corporations and the other public bodies named in Schedule 1 of the PSDPA.

Code of Conduct: The PSDPA requires Treasury Board to establish a Code of Conduct for the federal public sector. However, chief executives of federal departments and organizations must go further and establish their own codes that are consistent with the Treasury Board Code but adapted to the needs of their organizations.

Definition of Wrongdoing: The Act describes wrongdoing as: the contravention of an Act of Parliament or of the legislature of a province, or of any regulations made under any such Act; the misuse of public funds or assets; gross mismanagement in the federal public sector; a serious breach of a code of conduct; an 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.

Definition of Reprisal: Reprisal is defined to mean any of the following measures taken against a person who has made a protected disclosure or has cooperated in an investigation, including any disciplinary measure: the demotion of the person, termination of employment, the taking of any measure that adversely affect the employment or working conditions of a person or a threat to do any of those things or to direct a person to do them.

Confidentiality: Chief executives must, subject to 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, and establish procedures to ensure the confidentiality of information collected in relation to disclosures under this Act.

The Public Sector Integrity Commissioner (PSIC), appointed under this Act, is responsible for ensuring that the right to procedural fairness and natural justice of all persons involved in investigations is respected. The PSIC is required to protect, to the extent possible, the identity of all persons involved in the disclosure process. The PSIC must also establish procedures to ensure the confidentiality of information collected in relation to disclosures or investigations.

The PSDPA includes amendments to the Access to Information Act,Privacy Act and Personal Information Protection and Electronic Documents Act in relation to disclosure and disclosure investigation information.

Disclosure Process

A public servant may make a disclosure to the PSIC or internally to his or her supervisor or to the senior officer designated for this purpose under the Act. The PSIC has investigatory powers under Part II of the Inquiries Act.

1. Each chief executive in the federal public sector must designate a senior officer and establish an internal disclosure mechanism unless it is not practical given the size of the organization.
2. When a public servant makes a disclosure to the PSIC, he or she will investigate the alleged wrongdoing, report his or her findings and make recommendations on corrective measures to the chief executive concerned.
3. A public servant may make a public disclosure only if there is not sufficient time to make the disclosure using the internal or independent PSIC processes and the public servant believes on reasonable grounds that there is a serious breach of federal or provincial laws, or an imminent risk of a substantial and specific danger to the life, health and safety of persons, or to the environment.
4. Any person can provide information about a wrongdoing in or relating to the public sector to the PSIC who can investigate the allegation.

Reprisal Protection Process

1. The PSIC will receive all reprisal complaints from public servants.
2. If the PSIC decides to deal with the complaint, he or she will designate a person as an investigator. At any time during the course of the investigation, the investigator may recommend to the PSIC that a conciliator be appointed to attempt to bring about a settlement.
3. After receiving the investigation report, if the PSIC is of the opinion that it is warranted, he or she may apply to the Public Servants Disclosure Protection Tribunal for a determination of whether or not a reprisal was taken against the complainant.
4. On application by the PSIC, if the Tribunal, composed of Federal Court or provincial superior court judges, determines that a reprisal occurred, it can order remedial action, including:
5. • Permit the complainant to return to his or her duties;
   • Reinstate the complainant or pay compensation in lieu of reinstatement if the relationship of trust between the parties cannot be restored;
   • Pay to the complainant compensation in an amount not greater than the amount that is equivalent to any financial or other penalty imposed on the complainant;
   • Rescind any disciplinary action;
   • Pay the complainant an amount equal to any expenses or other financial losses incurred as a direct result of the reprisal;
   • Compensate the complainant by an amount of not more than $10,000, for any pain and suffering experienced as a result of the reprisal.
6. The Tribunal can also order disciplinary action against persons determined to have taken a reprisal.
7. Public servants may still choose to deal with the matter through grievance, if applicable, but can only use one mechanism. In fact, 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.

Protection from Reprisal for Non-Public Servants

Protection for all Employees

Reprisal protection is provided for all employees (not just public servants) who provide information concerning an alleged wrongdoing in the public sector.

Employers are prohibited from retaliating against an employee who provided information about federal public sector wrongdoing to the Commissioner.

Protection for Contractors

Public servants are prohibited from retaliating against contractors, including recipients of grants and contributions, because they reported government wrongdoing to the Commissioner.

Reporting Obligations

• The PSIC, or the Senior Officer, will report the findings of investigations and recommend corrective action when required to the chief executive concerned.
• The PSIC may make special reports to Parliament and must prepare an annual report to Parliament.
• The PSIC must report to Parliament within 60 days of finding a wrongdoing.
• Chief Executives must report publicly on findings of wrongdoing.
• CPSA must make an annual report to Parliament on disclosure activity across the public sector.

Legal Advice

The PSIC may provide legal advice to any person involved in proceedings under the PSDPA up to an amount of $1,500 ($3,000 if the PSIC is of the opinion that there are exceptional circumstances) for those who do not otherwise have access to legal advice, at no cost to him or her.

Role of Bargaining Agents / Unions

Right to Representation

During the disclosure process, public servants have a right to be represented by any person in order to answer any allegations that may result in the Commissioner making a report or recommendation that adversely affects them, or if they are subpoenaed by the Commissioner to provide information.

Public servants have a right to be represented by any person throughout the reprisal complaint process.

Public servants may consult their bargaining agent at any time during PSDPA proceedings.

Consultative Role

The Act requires that bargaining agents be consulted before establishing the Code of Conduct.

Further Information

For further information about the PSDPA, please visit our web site.