Truth & Consequences

When Edgar Schmidt launched an atypical lawsuit against the Attorney-General of Canada accusing Ottawa of circumventing a legal requirement to properly review the constitutionality of draft legislation, the soft-spoken lawyer was prepared to pay the price for revealing a long-standing practice that strikes at the heart of the federal legislative process.

The riposte was swift. The day after the 61-year old senior lawyer of the federal Department of Justice filed his claim before the Federal Court of Canada in December 2012, he was suspended without pay. Schmidt would have preferred to keep working, but is now retired and living on a reduced pension. While disappointed with the “vengeful attitude” displayed by his former employer and the snub he has felt by some former colleagues, he has no regrets over his actions. “Quite frankly, I don’t think there was anything wrong with I did,” says the former general counsel of the Legislative Services Branch, the group responsible for drafting and examining bills and regulations. “There is nothing wrong in seeking to uphold the rule of law. There is nothing wrong in seeking the court to clarify one’s instructions when the instructions one is getting seems in conflict with the law.”

Schmidt joins a growing list of Canadian whistleblowers who quickly discover that disclosing potential wrongdoing in the workplace almost always leaves them vulnerable. Schmidt’s court case raises thorny issues over the nature of the professional responsibilities and ethical obligations of government lawyers. But it also underscores the tension that exists between the duty of loyalty an employee owes to his employer, freedom of expression as guaranteed by the Canadian Charter of Rights and Freedoms, and federal and provincial whistleblowing legislation that aims to protect whistleblowers from retribution by their employers.

It has proven to be an uneasy co-existence. Besides the federal Public Servant Disclosure Protection Act (PSDPA), six provinces have whistleblowing laws, almost all of which provide far broader protection to employees in the public sector than the private sector. Introduced over the past decade under the guise of promoting public interest of accountability and transparency in the public sector, the whistleblowing laws do not give civil servants a free pass to criticize or make malicious comments against their employers without justification. Indeed, limits are imposed on what kind of wrongdoing may be disclosed and to whom it may be disclosed, apparently to ensure that the whistleblowing legislation is not misused by employees to unduly criticize their employer.

But whistleblower advocacy groups such as Federal Accountability Initiative for Reform (FAIR) lament the effectiveness of whistleblowing legislation, going so far as to assert that whistleblowers in Canada are significantly worse off today than a decade ago. The Ottawa-based organization contends that common law rights have been narrowed and that whistleblower laws have forced “truth-tellers” into secretive administrative procedures that deny them due process, facilitate rather than prevent reprisals, and seem designed to keep damaging disclosures from public view. “I don’t see a good faith effort here – that is the bottom line,” says FAIR’s executive director David Hutton. “If you are going to get the allegations of wrongdoing properly investigated and protect the whistleblower you need really strong well-designed laws and an effective administration – and even then it’s never going to be easy to be a whistleblower. But these laws are riddled with loopholes, like Swiss cheese.”

The federal law, which establishes a regime for allegations of wrongdoing to be investigated and for whistleblowers to seek protection from reprisals, has been criticized for being too narrow in scope. Besides wholly or partially excluding national security and intelligence departments, the federal whistleblowing law does not allow government misconduct involving the private sector to be investigated nor does it allow investigations into misconduct involving former public servants. What’s more, critics contend that the Public Sector Integrity Commissioner, whose role is to investigate allegations of wrongdoing and to protect federal government whistleblowers from reprisals, has too much discretionary power to decide the fate of disclosures and complaints of reprisals. If wrongdoing is found to have occurred, the Commissioner can make recommendations to chief executives concerning corrective measures and will report the finding to Parliament within 60 days of informing the chief executive. “When you are the decision-maker it is nice to have as much discretion as possible,” acknowledges Integrity Commissioner Mario Dion. “But I can appreciate from the point of view of discloser that a bit more clarity would be reassuring.”

Just as reassuring would be to dispel the notion that disclosures of wrongdoing and complaints of reprisals are not taken seriously, says Michel Drapeau, an Ottawa lawyer and law professor who has handled whistleblowing cases. Between the year it was established in 2007 and 2013, the Commissioner’s office received 1,365 inquires, 434 of which were followed by formal disclosures, leading to 55 investigations, 34 of which were completed. All told, eight cases of wrongdoing have so far been reported to Parliament and six applications over complaints of reprisals were referred to an administrative body created to adjudicate complaints of reprisal. “In a bureaucracy that has almost 400,000 bureaucrats, it is absolutely amazing that you have such a miniscule number of people that come knocking at the door of the Integrity Commissioner, and to have the kind of results that it has had up to now,” observes Drapeau. He speculates, as others have, that the Office is still smarting from the scandal-plagued helmship of Christiane Ouimet, the first Integrity Commissioner who suddenly resigned days before a scathing report by the then Auditor-General of Canada Sheila Fraser. “First and foremost – and this is no fault of the current individuals who are operating within the framework given to them – they have to gain the confidence of public servants,” says Drapeau. “The process, in its infancy, was not covered by glory when there was no complaint that was retained by then Commissioner Madame Ouimet.” But the situation does not appear to have improved much under the helmship of Integrity Commissioner Dion.  This spring, Auditor-General Michael Ferguson quietly issued yet another damning report against the Integrity Commissioner, and found “gross mismanagement” of two separate case files.

Ottawa lawyer David Yazbeck, who is working on a number of high-profile whistleblower cases, too is prepared to give the Integrity Commissioner and the Tribunal that adjudicates complaints of reprisals time. “The Act is still in its infancy,” Yazbeck points out. “If you review the cases from the Tribunal you can see the Tribunal is very keen on developing a rich and thoughtful set of jurisprudence, which signals an interest in establishing some broad principles at the outset.” That doesn’t mean that no issues have to be addressed. Its investigative process for one has to be far more rigorous, says Yazbeck. A ruling by the Federal Court of Canada in Charbel El-Helou, 2012 FC 1111, allowed for judicial review after it held that the investigation by the Office of the Integrity Commissioner was not fair, something that Dion claims has been addressed following the judgment. “Since that decision, we always provide an opportunity to a complainant to provide new representations when we are about to make a decision that will be adverse to their interest – that’s a brand new procedural step not covered by the statute,” says Dion.

Some of the problems facing the Act and the Office of the Integrity Commissioner could be resolved by conducting an in-depth review, notes Paul Thomas, a Professor Emeritus at the University of Manitoba who has studied whistleblowing laws. Under the Act, the president of the Treasury Board is supposed to review the Act, its administration and operation five years after it came into force. It has not, and Dion admits he has no idea when it will take place. “What usually happens is that whistleblower laws are adopted in the aftermath or in the midst of a crisis or scandal and they are rushed into place without all the in-depth consideration you might like,” observes Thomas. “We need to realize that we have to evaluate them systematically and take stock of how well they are working.”

As it stands, however, most whistleblowers who are subjected to reprisals end up filing a grievance against their employer before the Public Service Labour Relations Board, an independent quasi-judicial statutory tribunal that is responsible for administering the collective bargaining and grievance adjudication systems in the federal public service. Adjudicators tend to conservatively follow the guidance meted out in the 1985 Supreme Court of Canada landmark ruling in Fraser v. PSSRB, says Yazbeck. The nation’s highest court held that in some circumstances a public servant may “actively and publicly express” opposition to the policies of a government, particularly if the government were engaged in illegal acts or if its policies jeopardized the life, health or safety of the public servant or others. Adjudicators and many courts also rely on another ruling by the SCC, Merk, [2005] 3 S.C.R. 425, 2005 SCC 70, because it held that an employee’s duty of loyalty and the public’s interest in whistleblowing is best reconciled with the “up the ladder” approach. Under this approach, “loyal” employees are encouraged to resolve the problems internally before going public. “The definition or circumstances in which people could engage in whistle blowing hasn’t changed much since the SCC Fraser judgment,” says Yazbeck. “And normally in most cases the up the ladder approach makes sense. That is the broad consensus.”

In practical terms, that means that whistleblowers can publicly voice a disclosure of wrongdoing only under exceptional circumstances, if they want to be able to take advantage of protections afforded by employment and whistleblowing laws, says Frédéric Massé, a labour lawyer with Borden Ladner Gervais LLP in Montreal. Employers cannot take reprisals if the whistleblower made a disclosure of wrongdoing that was based on facts and the “facts were true,” if it was made in good faith and in a respectable manner towards others, if the up the ladder approach was used, and if the disclosure of wrongdoing was of public interest. “Whistleblowing rests on the tension between two principles: the employee’s duty of loyalty and their freedom of expression under the Charter,” explains Massé. “If a whistleblower meets those four criteria, an employer normally would not be able to sanction the a whistleblower, in spite of the fact that an employee has a duty of loyalty.”

Much more should be done to protect whistleblowers from reprisals, beginning with shifting the burden of proof so that the onus is on employers to demonstrate that actions taken against whistleblowers did not arise from a disclosure, says Richard Perron, a lawyer and head of the Syndicat de professionnelles et professionnels du gouvernement du Québec, a union that recently published a 22-page report calling for a whistleblower law in Quebec. Perron also believes that whistleblowers who suffer reprisals should be able to seek redress, something that can’t be done anywhere in Canada. Hutton of FAIR concurs. “What needs to be done is to provide a remedy for whistleblowers who suffer reprisals, and this is where the laws fall down,” says Hutton. “All of these laws basically focus on the disclosure of wrongdoing and the whistleblower protections are kind of an afterthought.”

In the meantime, Schmidt is bracing himself for a legal battle that may prove to be a battle of attrition. And he appears to have no intention of backing down. “I was not content to go along with what I saw as illegal conduct because my loyalty as an employee was owed to the State, not to them,” says Schmidt over a cup of coffee at a café in Wakefield, Quebec, a picturesque small village 35 minutes north of Ottawa. “And my duty as a lawyer, my professional duty, is owed to the client, not to the instructing officers of my client – and the client is the State. That’s how I understand it. My hope is we can move on to trial fairly quickly because these are issues that really need to be addressed.” In spite of the steep price he has paid, Schmidt can claim a victory of sorts: he has successfully brought an issue to the public spotlight.

This story was originally published in Canadian Lawyer.

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