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

Act current to 2019-06-20 and last amended on 2018-03-06. Previous Versions

Complaints Relating to Reprisals (continued)

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

Marginal note:Dismissal of complaint

 If, after receipt of the report, the Commissioner is of the opinion that an application to the Tribunal is not warranted in the circumstances, he or she must dismiss the complaint.

  • 2006, c. 9, s. 201

Marginal note:Notice

 The Commissioner must notify in writing each of the following of his or her action under section 20.4 or 20.5:

  • (a) the complainant;

  • (b) if the complainant is a public servant, the complainant’s employer;

  • (c) if the complainant is a former public servant, the person or entity who was the complainant’s employer at the time the alleged reprisal was taken;

  • (d) the person or persons identified in the investigator’s report as being the person or persons who may have taken the alleged reprisal;

  • (e) the person or entity with the authority to take disciplinary action against any person referred to in paragraph (d); and

  • (f) every person, other than the complainant, or entity that was sent a notice under subsection 19.4(2) in respect of the complaint.

  • 2006, c. 9, s. 201

Public Servants Disclosure Protection Tribunal

Establishment

Marginal note:Establishment

  •  (1) There is established a tribunal to be known as the Public Servants Disclosure Protection Tribunal consisting of a Chairperson and not less than two and not more than six other members to be appointed by the Governor in Council. All of the members must be judges of the Federal Court or a superior court of a province.

  • Marginal note:Tenure

    (2) Each member of the Tribunal is to be appointed for a term of not more than seven years and holds office so long as he or she remains a judge.

  • Marginal note:Re-appointment

    (3) A member of the Tribunal, on the expiration of a first or any subsequent term of office, is eligible to be re-appointed for a further term.

  • Marginal note:Temporary members

    (4) Subject to subsection (5), in addition to the members appointed under subsection (1), any judge or former judge of the Federal Court of Canada or the Federal Court or of a superior or district court of a province may, on the request of the Chairperson of the Tribunal made with the approval of the Governor in Council, act as a temporary member of the Tribunal.

  • Marginal note:Consent required

    (5) Except in relation to a former judge, no request may be made under subsection (4)

    • (a) to a judge of the Federal Court without the consent of the Chief Justice of that Court or of the Attorney General of Canada; or

    • (b) to a judge of a superior court of a province without the consent of the chief justice or chief judge of that court or of the attorney general of the province.

  • Marginal note:Approval of requests by Governor in Council

    (6) The Governor in Council may approve the making of requests under subsection (4) in general terms or for particular periods or purposes, and may limit the number of persons who may act as temporary members of the Tribunal.

  • Marginal note:Remuneration of temporary members

    (7) Each temporary member of the Tribunal who is a former judge is to be paid the remuneration determined by the Governor in Council.

  • Marginal note:Expenses

    (8) Each member of the Tribunal and each temporary member of the Tribunal is entitled to be paid the expenses fixed by the Governor in Council.

  • Marginal note:Acting after expiration of appointment

    (9) A member of the Tribunal whose appointment expires may, with the approval of the Chairperson, conclude any hearing that the member has begun and he or she is deemed to be a temporary member of the Tribunal for the purpose.

  • 2006, c. 9, s. 201
 
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