Public Servants Disclosure Protection Act (S.C. 2005, c. 46)

Marginal note:Disclosure to public

• 16 (1) A disclosure that a public servant may make under sections 12 to 14 may be made to the public if there is not sufficient time to make the disclosure under those sections and the public servant believes on reasonable grounds that the subject-matter of the disclosure is an act or omission that

  • (a) constitutes a serious offence under an Act of Parliament or of the legislature of a province; or

  • (b) constitutes an imminent risk of a substantial and specific danger to the life, health and safety of persons, or to the environment.

• Marginal note:Limitation

  (1.1) Subsection (1) does not apply in respect of information the disclosure of which is subject to any restriction created by or under any Act of Parliament, including the Personal Information Protection and Electronic Documents Act.

• Marginal note:Rights not affected

  (2) Nothing in subsection (1) affects the rights of a public servant to make to the public in accordance with the law a disclosure that is not protected under this Act.

Marginal note:Exception — special operational information

17 Section 12, subsection 13(1) and sections 14 and 16 do not apply in respect of any information that is special operational information within the meaning of subsection 8(1) of the Foreign Interference and Security of Information Act.

Marginal note:Saving — journalists with Canadian Broadcasting Corporation

18 Nothing in this Act relating to the making of disclosures is to be construed as applying to the dissemination of news and information by a person employed by the Canadian Broadcasting Corporation for that purpose.

Marginal note:Other obligations to report

18.1 Nothing in this Act relating to the making of disclosures is to be construed as affecting any obligation of a public servant to disclose, report or otherwise give notice of any matter under any other Act of Parliament.

Complaints Relating to Reprisals

Prohibition Against Reprisals

Marginal note:Prohibition against reprisal

19 No person shall take any reprisal against a public servant or direct that one be taken against a public servant.

Complaints

Marginal note:Complaints

• 19.1 (1) A public servant or a former public servant who has reasonable grounds for believing that a reprisal has been taken against him or her may file with the Commissioner a complaint in a form acceptable to the Commissioner. The complaint may also be filed by a person designated by the public servant or former public servant for the purpose.

• Marginal note:Time for making complaint

  (2) The complaint must be filed not later than 60 days after the day on which the complainant knew, or in the Commissioner’s opinion ought to have known, that the reprisal was taken.

• Marginal note:Time extended

  (3) The complaint may be filed after the period referred to in subsection (2) if the Commissioner feels it is appropriate considering the circumstances of the complaint.

• Marginal note:Effect of filing

  (4) Subject to subsection 19.4(4), the filing of a complaint under subsection (1) precludes the complainant from commencing any procedure under any other Act of Parliament or collective agreement in respect of the measure alleged to constitute the reprisal.

• Marginal note:Exception — RCMP

  (5) A member or former member of the Royal Canadian Mounted Police may not make a complaint under subsection (1) in relation to any action under section 20.2, or any matter that is the subject of an investigation or proceeding under Part IV of the Royal Canadian Mounted Police Act, unless

  • (a) he or she has exhausted every procedure available under that Act for dealing with the action or matter; and

  • (b) the complaint is filed within 60 days after those procedures have been exhausted.

Marginal note:Complaint in respect of past disclosures

• 19.2 (1) A public servant who alleges that a reprisal was taken against him or her by reason that he or she, in good faith, disclosed, after February 10, 2004 and before the day on which section 19.1 comes into force, a wrongdoing in the course of a parliamentary proceeding or an inquiry under Part I of the Inquiries Act may file a complaint under that section in respect of the reprisal.

• Marginal note:Time limit

  (2) The public servant may file the complaint within 60 days after the later of

  • (a) the day on which section 19.1 comes into force, and

  • (b) the day on which he or she knew or, in the opinion of the Commissioner, ought to have known that the reprisal was taken.

Marginal note:Refusal to deal with complaint

• 19.3 (1) The Commissioner may refuse to deal with a complaint if he or she is of the opinion that

  • (a) the subject-matter of the complaint has been adequately dealt with, or could more appropriately be dealt with, according to a procedure provided for under an Act of Parliament, other than this Act, or a collective agreement;

  • (b) if the complainant is a member or former member of the Royal Canadian Mounted Police, the subject-matter of the complaint has been adequately dealt with by the procedures referred to in subsection 19.1(5);

  • (c) the complaint is beyond the jurisdiction of the Commissioner; or

  • (d) the complaint was not made in good faith.

• Marginal note:Restriction

  (2) 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 other than as a law enforcement authority.

• Marginal note:Royal Canadian Mounted Police Act

  (3) For the purpose of subsection (2), a person or body dealing with a matter in the course of an investigation or proceeding under the Royal Canadian Mounted Police Act is deemed not to be dealing with the matter as a law enforcement authority.

• Marginal note:No jurisdiction

  (4) The Commissioner ceases to have jurisdiction to deal with a complaint filed by a member or former member of the Royal Canadian Mounted Police if an application for judicial review of any decision relating to the procedures referred to in subsection 19.1(5) is made by the member.

Marginal note:Time limit

• 19.4 (1) The Commissioner must decide whether or not to deal with a complaint within 15 days after it is filed.

• Marginal note:Notice — decision to deal with complaint

  (2) If the Commissioner decides to deal with a complaint, he or she must send a written notice of his or her decision to the complainant and to the person or entity that has the authority to take disciplinary action against each person who participated in the taking of a measure alleged by the complainant to constitute a reprisal.

• Marginal note:Reasons — decision not to deal with complaint

  (3) If the Commissioner decides not to deal with a complaint, he or she must send a written notice of his or her decision to the complainant and set out the reasons for the decision.

• Marginal note:Effect of not dealing with complaint

  (4) If the Commissioner decides not to deal with a complaint and sends the complainant a written notice setting out the reasons for that decision,

  • (a) subsection 19.1(4) ceases to apply; and

  • (b) the period of time that begins on the day on which the complaint was filed and ends on the day on which the notice is sent is not to be included in the calculation of any time the complainant has to avail himself or herself of any procedure under any other Act of Parliament or collective agreement in respect of the measure alleged to constitute the reprisal.

• Marginal note:Exception

  (5) Subsection (4) does not apply if the Commissioner has decided not to deal with the complaint for the reason that it was not made in good faith.

Disciplinary Action

Marginal note:Restriction on disciplinary action

• 19.5 (1) If the Commissioner decides to deal with a complaint and sends a written notice under subsection 19.4(2) and no disciplinary action has yet been taken against a person by reason of that person’s participation in the taking of a measure alleged by the complainant to constitute a reprisal, no disciplinary action may be taken during the period referred to in subsection (3) in relation to the person’s participation in the taking of the measure.

• Marginal note:Exception

  (2) Subsection (1) does not apply in respect of disciplinary action taken as a result of a settlement approved by the Commissioner or an order of the Tribunal.

• Marginal note:Period during which no disciplinary action may be taken

  (3) For the purposes of subsection (1), the period during which no disciplinary action may be taken is the period that begins on the day on which the Commissioner sends the notice referred to in subsection 19.4(2) and ends on the earliest of

  • (a) the day on which the complaint is withdrawn or dismissed,

  • (b) the day on which the Commissioner makes an application to the Tribunal for an order referred to in paragraph 20.4(1)(a) in respect of the complaint, and

  • (c) in the case where the Commissioner makes an application to the Tribunal for the orders referred to in paragraph 20.4(1)(b) in respect of the complaint, the day on which the Tribunal makes a determination that the complainant was not subject to a reprisal taken by the person.

• Marginal note:Period not to be included

  (4) If a time limit is provided for under any Act of Parliament or collective agreement for the taking of disciplinary action, the period during which disciplinary action may not be taken against the person by reason of subsection (1) is not to be included in the calculation of the prescribed time limit.

• Marginal note:Application

  (5) This section applies despite Part IV of the Royal Canadian Mounted Police Act.

Marginal note:Suspension of disciplinary action

• 19.6 (1) If the Commissioner decides to deal with a complaint and sends a written notice under subsection 19.4(2) and disciplinary action has already been taken against a person by reason of the person’s participation in the taking of a measure alleged by the complainant to constitute a reprisal

  • (a) the implementation of the disciplinary action — and the commencement or continuation of any procedure in relation to the disciplinary action by the person under any other Act of Parliament or collective agreement — is suspended for the period referred to in subsection (3); and

  • (b) the appropriate chief executive must take the measures necessary to put the person in the situation the person was in before the disciplinary action was implemented.

• Marginal note:Exception

  (2) If the disciplinary action already taken against a person by reason of the person’s participation in the taking of a measure alleged by the complainant to constitute a reprisal has been the subject of a decision of a court, tribunal or arbitrator dealing with it on the merits, other than a decision made under the Royal Canadian Mounted Police Act,

  • (a) subsection (1) does not apply; and

  • (b) neither the Commissioner nor the Tribunal may deal with the issue of disciplinary action against that person.

• Marginal note:Period of suspension

  (3) For the purposes of paragraph (1)(a), the suspension begins on the day on which the Commissioner sends the notice referred to in subsection 19.4(2) and ends on the earliest of

  • (a) the day on which the complaint is withdrawn or dismissed,

  • (b) the day on which the Commissioner makes an application to the Tribunal for an order referred to in paragraph 20.4(1)(a) in respect of the complaint,

  • (c) in the case where the Commissioner makes an application to the Tribunal for the orders referred to in paragraph 20.4(1)(b) in respect of the complaint, the day on which the Tribunal makes a determination that the complainant was not subject to a reprisal taken by the person, and

  • (d) the day on which the disciplinary action is taken as a result of a settlement approved by the Commissioner or an order of the Tribunal.

• Marginal note:Prior disciplinary action cancelled

  (4) Disciplinary action taken as a result of a settlement approved by the Commissioner or an order of the Tribunal cancels any prior disciplinary action.

• Marginal note:Application

  (5) This section applies despite Part IV of the Royal Canadian Mounted Police Act.

Investigations into Complaints

Marginal note:Designation of complaint investigator

• 19.7 (1) The Commissioner may designate a person as an investigator to investigate a complaint.

• Marginal note:Informality

  (2) Investigations into complaints are to be conducted as informally and expeditiously as possible.

Marginal note:Notice to chief executive

• 19.8 (1) When commencing an investigation, the investigator must notify the chief executive concerned and inform that chief executive of the substance of the complaint to which the investigation relates.

• Marginal note:Notice to others

  (2) The investigator may also notify any other person he or she considers appropriate, including every person whose conduct is called into question by the complaint, and inform the person of the substance of the complaint.

Marginal note:Access

• 19.9 (1) If the investigator so requests, chief executives and public servants must provide the investigator with any facilities, assistance, information and access to their respective offices that the investigator may require for the purposes of the investigation.

• Marginal note:Insufficient cooperation

  (2) If the investigator concludes that he or she is unable to complete an investigation because of insufficient cooperation on the part of chief executives or public servants, he or she must make a report to the Commissioner to that effect under section 20.3.

Conciliation

Marginal note:Recommendation — conciliation

• 20 (1) At any time during the course of the investigation into a complaint the investigator may recommend to the Commissioner that a conciliator be appointed to attempt to bring about a settlement.

• Marginal note:Appointment of conciliator

  (2) The Commissioner may appoint a person as a conciliator for the purpose of attempting to bring about a settlement of the complaint.

• Marginal note:Eligibility

  (3) A person is not eligible to act as a conciliator in respect of a complaint if that person has already acted as an investigator in respect of that complaint.

• Marginal note:Confidentiality

  (4) Any information received by a conciliator in the course of attempting to reach a settlement of a complaint is confidential and may not be disclosed except with the consent of the person who gave the information.