Disclosure of wrongdoing
Reprisal complaints
Disclosure of wrongdoing
What is ‘gross mismanagement’ in the public sector?
Gross mismanagement generally applies to very serious situations that result or could result in a breach of public interest. The following factors, among others, are considered when determining whether a situation could constitute “gross mismanagement”:
- the seriousness of the deviation from standards, policies or practices;
- the functions and responsibilities of the public servant alleged to be responsible for the gross mismanagement;
- the seriousness and wilfulness of the acts or omissions in question;
- the repetitive or systemic nature of the acts;
- the impact or potential impact of the mismanagement on the organization’s ability to carry out its mandate;
- the impact or potential impact on the organization’s employees, clients and the public trust.
What is a ‘protected disclosure’?
A protected disclosure is defined in the Public Servants Disclosure Protection Act (the Act) as a disclosure made by a public servant of any information that he or she believes could show that a wrongdoing was committed or is about to be committed in the federal public sector, or that could show that the public servant has been asked to commit a wrongdoing.
A disclosure is protected if it is made in good faith to the public servant’s supervisor, to his/her organization’s designated Senior Officer for internal disclosure, or to the Office of the Public Sector Integrity Commissioner of Canada.
A protected disclosure also includes information provided in the course of a parliamentary proceeding or a procedure established under any other Act of Parliament, as well as when a public servant is lawfully required to make a disclosure.
The concept of “protected” is an important one, as someone making such a disclosure is protected against reprisal.
I am not sure if I should make a disclosure of wrongdoing. Where can I get more information or find out if the activity I am concerned about in my workplace is considered wrongdoing under the Act?
The definition of wrongdoing refers to serious actions that are contrary to the public interest. If in doubt, contact your organization’s designated Senior Officer for internal disclosure or our Registrar (1-866-941-6400).
Our Registrar’s office offers information and guidance to help you make an informed decision, and can also provide you with details about the process and what you can expect if you make a disclosure to our Office.
Some situations, while not meeting the definition of a wrongdoing under the Act, may still require attention. If our Office is not the most appropriate mechanism to deal with the situation you raise, we will do our best to direct you to the right place.
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Do I have an obligation to disclose wrongdoing?
Each of us has an ethical responsibility to disclose wrongdoing. This is part of being a responsible, honest employee who has the public interest and the interest of his or her organization at heart.
We should all work together to ensure that the highest ethical and professional standards are upheld in the federal public sector, and we have to work together to identify and respond to wrongdoing. Our Office was created for this reason, but each of us has the ongoing responsibility to work to prevent wrongdoing from occurring in the first place, and when wrongdoing does occur, to respond to it immediately by speaking to those who have the power to remedy the situation and to take the necessary corrective action.
This ethical responsibility is in addition to obligations that public servants may have to disclose or report wrongdoing under any other Act of Parliament.
Do I have an obligation to participate in an investigation into a disclosure of wrongdoing?
Yes, as a public servant, you have to co-operate with the work of the Office of the Public Sector Integrity Commissioner, as stated in the Act. Co-operation is essential to our ability to fulfill our duties and to carry out our work in the best interests of the public sector and of all Canadians. You must also co-operate if you are asked to be a witness or to provide information pertaining to an investigation.
This co-operation may include providing facilities, assistance, information and access to offices that might be required during an investigation. You must also ensure that documents that could be relevant to an investigation are not destroyed, mutilated, altered, falsified or concealed.
Can I make a disclosure of wrongdoing anonymously?
The Act does not provide a mechanism to make anonymous disclosures and it is difficult for our Office to determine whether the information is provided by a public servant in good faith. However, our Office may investigate anonymous disclosures if the information concerns serious wrongdoing and appears reliable and sufficient to enable the allegations to be investigated. In the event that our Office receives anonymous information that is insufficient to act upon, we will bring it to the attention of the concerned organization or the appropriate authority if we believe it is in the public interest to do so.
We encourage anyone who fears identifying himself/herself for the purpose of making a disclosure to contact our Office to discuss the process and procedures we use and the protections provided by the Act to disclosers.
Can my union representative come with me when I make a disclosure?
Yes, you may be accompanied by any person you choose, including your union representative.
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Will I be protected from reprisals if I take my disclosure to the media directly?
The purpose of the Act is to allow public servants to disclose within their organization or to our Office, potential wrongdoing in a confidential manner, and be protected against reprisal for doing so.
A disclosure to the public is only protected in exceptional circumstances: if the public servant does not have enough time to make it to his/her supervisor, his/her Senior Officer or to our Office, and the public servant believes on reasonable grounds that there has been a serious breach of federal or provincial laws, or that there is an imminent risk of a substantial and specific danger to the life, health and safety of persons or the environment.
Does the Commissioner examine all disclosures?
Yes, all disclosures of wrongdoing made to our Office are closely reviewed to ensure they are within the Commissioner’s legislated mandate. In many cases, the review process involves the extensive examination of documents provided and research into factual and legal issues to determine if further action is needed. Further action may include conducting inquries with the concerned organization and, if required, launching an investigation.
What determines whether an investigation is required?
The Commissioner will begin an investigation when it is in the public interest to do so. Some of the factors considered include:
- whether the information disclosed has been properly and adequately dealt with, or could more appropriately be dealt with, according to another procedure (for example, human rights violations can be dealt with by the Canadian Human Rights Commission);
- the length of time that has elapsed since the events occurred (after a certain amount of time, it may serve no useful purpose to deal with the disclosure).
There may be other reasons for not investigating a disclosure, for example, if it falls outside our Office’s jurisdiction.
What will happen after I make a disclosure?
Your disclosure will be reviewed to determine if further action is necessary. The Commissioner will notify you in writing of his decision to take or not further action, as well as the reasons for his conclusion. If the Commissioner’s decision is to take further action, including conducting an investigation, we will advise the chief executive of the organization involved. If required, we will also advise persons against whom allegations have been made.
At the end of an investigation, you will be notified of the Commissioner’s findings.
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How long does the process take?
As each case is unique, it is difficult to set out a specific timeframe for how long the disclosure process takes. For example, factors that affect the length of time the process can take include:
- availability of documentation;
- complexity of issues;
- whether specific expertise or research is needed.
For more information on the disclosure process, please view the attached table.
When the Office of the Public Sector Integrity Commissioner launches an investigation, what information is shared and with whom?
In accordance with the Act, your identity will be protected to the extent possible. When conducting an investigation, the Commissioner must notify the chief executive concerned of the substance of the disclosure to which the investigation relates. The Commissioner, or the person conducting the investigation, may also notify any other person he or she considers appropriate, including every person whose acts or conduct are called into question by the disclosure to which the investigation relates, and inform that person of the substance of the disclosure.
What happens following an investigation into a disclosure of wrongdoing?
The Commissioner will make a decision as to whether the alleged wrongdoing is founded based on the results of the investigation. The Commissioner’s decision will be communicated to the discloser, other persons involved, and to the organization’s chief executive. If wrongdoing is found to have occurred, the Commissioner can make recommendations to chief executives concerning corrective measures. Also, the Commissioner must report cases of founded wrongdoing to Parliament.
See table
Allegations of wrongdoing have been made against me. What are my rights?
The Office is committed to ensuring that the principles of natural justice and procedural fairness are applied to all persons involved. If you are alleged to have committed a wrongdoing, you will be informed of the substance of the disclosure. You will be given full and ample opportunity to answer any allegation. You have the right to be assisted or represented by any person of your choice, including counsel.
Can I obtain free independent legal advice?
The Public Sector Integrity Commissioner has the authority to approve access to free legal advice to any person involved in a proceeding under the Act, up to a maximum of $1,500, or $3,000 in exceptional circumstances.
Legal advice can be provided by one of our Office’s lawyers or by an outside lawyer. In either situation, the relationship between the lawyer and the person receiving legal advice is protected by solicitor-client privilege.
The Act states that one of the conditions for providing legal advice at no cost is that the person requesting it must not have access to free legal advice by other means.
You may also qualify to receive free legal advice if you are considering making a disclosure, but have not already done so.
Do I have any recourse if I am not satisfied with a decision by the Public Sector Integrity Commissioner?
There are no possible appeals of the Commissioner’s decisions. However, an application for judicial review of the Commissioner’s findings may be brought to the Federal Court of Canada.
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Reprisal complaints
Am I protected from reprisal if I disclosed a wrongdoing internally and not directly to the Office of the Public Sector Integrity Commissioner of Canada?
Yes, whether you disclosed a wrongdoing internally or to our Office, you are protected from reprisal.
If you believe that a reprisal has been taken against you after you have made a disclosure of wrongdoing, you should contact our Office immediately. You must file a reprisal complaint within 60 days of the day on which you knew or ought to have known that the reprisal was taken. The Commissioner may extend this period if he believes that it is appropriate to do so considering the circumstances.
Am I protected from reprisal if, after a review or an investigation, the wrongdoing that I disclosed is determined to be unfounded?
Yes, the protection from reprisal applies to all protected disclosures made in good faith, whether or not they are investigated or determined to be founded.
Am I protected from reprisal if I am not an employee in the federal public sector who discloses a wrongdoing within the federal public sector?
Yes, any person who, in good faith, provides information to the Commissioner about a possible wrongdoing in the federal public sector is protected under the Act. Public servants are prohibited from taking a reprisal against contractors, or recipients of grants or contributions, who disclosed to the Commissioner an alleged wrongdoing in the federal public sector. Public servants cannot terminate a contract, withhold payment or refuse to grant a future contract on that basis.
It is an offence for any employer or public servant to take reprisals. However, our Office does not have jurisdiction to deal with reprisal complaints outside the federal public sector.
Non public servants who believe they have suffered reprisals may have their complaint dealt with through existing labour relations processes that apply to them or through civil or criminal recourses.
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Does the Commissioner review all reprisal complaints?
Yes, all complaints of reprisal are reviewed by our Office carefully and as quickly as possible.
The Commissioner may refuse to deal with a reprisal complaint if:
- the complaint has been dealt with, or could more appropriately be dealt with, according to another procedure (for example, a grievance process);
- the complaint is beyond the jurisdiction of the Commissioner;
- the complaint was not made in good faith.
In addition, the Commissioner cannot deal with a reprisal complaint if it is being dealt with by another person or body under another Act of Parliament or a collective agreement.
The Commissioner will notify the complainant in writing about any further action to be taken regarding the reprisal complaint.
What happens after an investigation if the matter has not been settled?
If the reprisal complaint has not been settled through conciliation, after the investigation the Commissioner must decide whether to refer the matter to the Public Servants Disclosure Protection Tribunal or to dismiss the complaint.
What is the role of the Public Servants Disclosure Protection Tribunal?
The Tribunal will determine whether or not a reprisal has been taken. It has the power to grant remedies to the public servant against whom a reprisal was taken, and to order disciplinary action against the public servant who took the reprisal.
Additional information is available on the Tribunal’s website.
What are the consequences for a public servant who has taken a reprisal?
A public servant who has taken a reprisal may be subject to administrative or disciplinary action including termination of employment.
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Allegations of reprisal have been made against me. Do I have the right to be represented by counsel?
Yes. Any person involved in a reprisal complaint may be represented by a person of their choice, including legal counsel.
Can I obtain free independent legal advice?
The Public Sector Integrity Commissioner has the authority to approve access to free legal advice to any person involved in a proceeding under the Act, up to a maximum of $1,500, or $3,000 in exceptional circumstances.
Legal advice can be provided by one of our Office’s lawyers or by an outside lawyer. In either situation, the relationship between the lawyer and the person receiving legal advice is protected by solicitor-client privilege.
The Act states that one of the conditions for providing legal advice at no cost is that the person requesting it must not have access to free legal advice by other means.
You may also qualify to receive free legal advice if you are considering making a reprisal complaint, but have not already done so.