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

Act current to 2016-06-06 and last amended on 2016-01-01. Previous Versions

Marginal note:Suspension of disciplinary action
  •  (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    • (a) the day on which the complaint is withdrawn or dismissed,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.

  • 2006, c. 9, s. 201.

Investigations into Complaints

Marginal note:Designation of complaint investigator
  •  (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.

  • 2006, c. 9, s. 201.
Marginal note:Notice to chief executive
  •  (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.

  • 2006, c. 9, s. 201.
Marginal note:Access
  •  (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.

  • 2006, c. 9, s. 201.

Conciliation

Marginal note:Recommendation — conciliation
  •  (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.

  • 2005, c. 46, s. 20;
  • 2006, c. 9, s. 201.
Marginal note:Who may settle — remedy
  •  (1) A settlement that relates to the remedy to be provided to the complainant must be agreed to by the complainant and the person with the authority to implement the remedy.

  • Marginal note:Who may settle — disciplinary action

    (2) A settlement that relates to the disciplinary action, if any, that is to be imposed on a person identified by the investigator as being the person or one of the persons who took the alleged reprisal must be agreed to by the person identified by the investigator and the person with the authority to take the disciplinary action.

  • 2005, c. 46, s. 20.1;
  • 2006, c. 9, s. 201.
Marginal note:Referral of a settlement to Commissioner
  •  (1) The terms of a settlement must be referred to the Commissioner for approval or rejection and the Commissioner must, without delay after approving or rejecting them, so certify and notify the parties to the settlement.

  • Marginal note:Complaint dismissed

    (2) If the Commissioner approves a settlement that relates to the remedy to be provided to the complainant, the complaint to which it relates is dismissed.

  • Marginal note:Application barred

    (3) If the Commissioner approves a settlement that relates to disciplinary action, if any, that is to be imposed on a person, the Commissioner may not apply to the Tribunal for an order referred to in paragraph 20.4(1)(b) in respect of the person.

  • Marginal note:Enforcement of settlement

    (4) A settlement approved by the Commissioner may, for the purpose of enforcement, be made an order of the Federal Court on application to that Court by the Commissioner or a party to the settlement.

  • 2006, c. 9, s. 201.

Decision After Investigation

Marginal note:Investigator’s report to Commissioner

 As soon as possible after the conclusion of the investigation, the investigator must submit a report of his or her findings to the Commissioner.

  • 2006, c. 9, s. 201.
Marginal note:Application to Tribunal
  •  (1) If, after receipt of the report, the Commissioner is of the opinion that an application to the Tribunal in relation to the complaint is warranted, the Commissioner may apply to the Tribunal for a determination of whether or not a reprisal was taken against the complainant and, if the Tribunal determines that a reprisal was taken, for

    • (a) an order respecting a remedy in favour of the complainant; or

    • (b) an order respecting a remedy in favour of the complainant and an order respecting disciplinary action against any person or persons identified by the Commissioner in the application as being the person or persons who took the reprisal.

  • Marginal note:Exception

    (2) The order respecting disciplinary action referred in paragraph (1)(b) may not be applied for in relation to a complaint the filing of which is permitted by section 19.2.

  • Marginal note:Factors

    (3) In considering whether making an application to the Tribunal is warranted, the Commissioner must take into account whether

    • (a) there are reasonable grounds for believing that a reprisal was taken against the complainant;

    • (b) the investigation into the complaint could not be completed because of lack of cooperation on the part of one or more chief executives or public servants;

    • (c) the complaint should be dismissed on any ground mentioned in paragraphs 19.3(1)(a) to (d); and

    • (d) having regard to all the circumstances relating to the complaint, it is in the public interest to make an application to the Tribunal.

  • 2006, c. 9, s. 201.
 
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