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

Marginal note:Rights of parties

• 21.6 (1) Every party must be given a full and ample opportunity to participate at any proceedings before the Tribunal — including, but not limited to, by appearing at any hearing, by presenting evidence and by making representations — and to be assisted or represented by counsel, or by any person, for that purpose.

• Marginal note:Duty of Commissioner

  (2) The Commissioner must, in proceedings before the Tribunal, adopt the position that, in his or her opinion, is in the public interest having regard to the nature of the complaint.

• Marginal note:Limitation — proceedings relating to remedy

  (3) With respect to the portions of proceedings that relate solely to the remedy, if any, to be ordered in favour of the complainant, the Tribunal may, despite subsection (1), limit the participation of any person or persons identified as being the person or persons who may have taken the alleged reprisal.

Marginal note:Remedies

• 21.7 (1) To provide an appropriate remedy to the complainant, the Tribunal may, by order, require the employer or the appropriate chief executive, or any person acting on their behalf, to take all necessary measures to

  • (a) permit the complainant to return to his or her duties;

  • (b) reinstate the complainant or pay compensation to the complainant in lieu of reinstatement if, in the Tribunal’s opinion, the relationship of trust between the parties cannot be restored;

  • (c) pay to the complainant compensation in an amount not greater than the amount that, in the Tribunal’s opinion, is equivalent to the remuneration that would, but for the reprisal, have been paid to the complainant;

  • (d) rescind any measure or action, including any disciplinary action, and pay compensation to the complainant in an amount not greater than the amount that, in the Tribunal’s opinion, is equivalent to any financial or other penalty imposed on the complainant;

  • (e) pay to the complainant an amount equal to any expenses and any other financial losses incurred by the complainant as a direct result of the reprisal; or

  • (f) compensate the complainant, by an amount of not more than $10,000, for any pain and suffering that the complainant experienced as a result of the reprisal.

• Marginal note:Royal Canadian Mounted Police Act

  (2) The Tribunal may make an order under subsection (1) in relation to a member of the Royal Canadian Mounted Police despite subsections 32(1) and 45.16(9) of the Royal Canadian Mounted Police Act.

Marginal note:Disciplinary action

• 21.8 (1) The Tribunal may, by order, require the Governor in Council, the employer or the appropriate chief executive, or any person acting on their behalf, to take all necessary measures to take the disciplinary action, including termination of employment or revocation of appointment, specified by the Tribunal against any person named in the application who was determined by it to have taken the reprisal.

• Marginal note:Factors

  (2) In making the order the Tribunal must take into account the factors ordinarily considered by employers when they discipline their employees, including, but not limited to,

  • (a) the gravity of the reprisal;

  • (b) the level of responsibility inherent in the position that the person occupies;

  • (c) the person’s previous employment record;

  • (d) whether the reprisal was an isolated incident;

  • (e) the person’s rehabilitative potential; and

  • (f) the deterrent effect of the disciplinary action.

• Marginal note:Additional factors

  (3) In making the order the Tribunal must also take into account

  • (a) the extent to which the nature of the reprisal discourages the disclosure of wrongdoing under this Act; and

  • (b) the extent to which inadequate disciplinary action in relation to the reprisal would have an adverse effect on confidence in public institutions.

• Marginal note:Grievance precluded

  (4) The person against whom disciplinary action is taken as a result of an order made under subsection (1) may not initiate a grievance or other similar procedure under an Act of Parliament or a collective agreement in respect of the disciplinary action.

• Marginal note:Restriction — RCMP

  (5) The disciplinary action that the Tribunal may order with respect to a member of the Royal Canadian Mounted Police is limited to a conduct measure established under paragraph 39.1(a), or a conduct measure referred to in paragraph 45(4)(a) or (b), of the Royal Canadian Mounted Police Act, or any combination of them.

• Marginal note:Royal Canadian Mounted Police Act

  (6) The Tribunal may make an order under subsection (1) in relation to a member of the Royal Canadian Mounted Police despite subsections 32(1) and 45.16(9) of the Royal Canadian Mounted Police Act.

• Marginal note:Royal Canadian Mounted Police Act

  (7) An order made under subsection (1) in relation to a member of the Royal Canadian Mounted Police may be implemented by the Governor in Council or Commissioner of the Royal Canadian Mounted Police despite Part IV of the Royal Canadian Mounted Police Act.

Marginal note:Filing of orders in Federal Court

• 21.9 (1) The Commissioner must, on the request in writing of any person or employer affected by any order of the Tribunal, file a certified copy of the order, exclusive of the reasons for the order, in the Federal Court, unless, in his or her opinion,

  • (a) there is no indication of failure or likelihood of failure to comply with the order; or

  • (b) there is other good reason why the filing of the order in the Federal Court would serve no useful purpose.

• Marginal note:Effect of filing

  (2) An order of the Tribunal becomes an order of the Federal Court when a certified copy of the order is filed in that court, and it may subsequently be enforced as such.

Duties of the Commissioner

Marginal note:Duties

22 The duties of the Commissioner under this Act are to

• (a) provide information and advice regarding the making of disclosures under this Act and the conduct of investigations by the Commissioner;

• (b) receive, record and review disclosures of wrongdoings in order to establish whether there are sufficient grounds for further action;

• (c) conduct investigations of disclosures made in accordance with section 13, and investigations referred to in section 33, including to appoint persons to conduct the investigations on his or her behalf;

• (d) ensure that the right to procedural fairness and natural justice of all persons involved in investigations is respected, including persons making disclosures, witnesses and persons alleged to be responsible for wrongdoings;

• (e) subject to any other Act of Parliament, protect, to the extent possible in accordance with the law, the identity of persons involved in the disclosure process, including that of persons making disclosures, witnesses and persons alleged to be responsible for wrongdoings;

• (f) establish procedures for processing disclosures and ensure the confidentiality of information collected in relation to disclosures and investigations;

• (g) review the results of investigations into disclosures and those commenced under section 33 and report his or her findings to the persons who made the disclosures and to the appropriate chief executives;

• (h) make recommendations to chief executives concerning the measures to be taken to correct wrongdoings and review reports on measures taken by chief executives in response to those recommendations; and

• (i) receive, review, investigate and otherwise deal with complaints made in respect of reprisals.

Marginal note:Restriction — general

• 23 (1) The Commissioner may not deal with a disclosure under this Act or commence an investigation under section 33 if a person or body acting under another Act of Parliament is dealing with the subject-matter of the disclosure or the investigation other than as a law enforcement authority.

• Marginal note:Royal Canadian Mounted Police Act

  (2) For the purpose of subsection (1),

  • (a) the Commissioner of the Royal Canadian Mounted Police, or his or her delegate, is not acting as a law enforcement authority when taking any action under section 20.2 of the Royal Canadian Mounted Police Act; and

  • (b) a person or body dealing with a matter in the course of an investigation or proceeding under Part IV of that Act is not dealing with the matter as a law enforcement authority.

Marginal note:Right to refuse

• 24 (1) The Commissioner may refuse to deal with a disclosure or to commence an investigation — and he or she may cease an investigation — if he or she is of the opinion that

  • (a) the subject-matter of the disclosure or the investigation has been adequately dealt with, or could more appropriately be dealt with, according to a procedure provided for under another Act of Parliament;

  • (b) the subject-matter of the disclosure or the investigation is not sufficiently important;

  • (c) the disclosure was not made in good faith or the information that led to the investigation under section 33 was not provided in good faith;

  • (d) the length of time that has elapsed since the date when the subject-matter of the disclosure or the investigation arose is such that dealing with it would serve no useful purpose;

  • (e) the subject-matter of the disclosure or the investigation relates to a matter that results from a balanced and informed decision-making process on a public policy issue; or

  • (f) there is a valid reason for not dealing with the subject-matter of the disclosure or the investigation.

• Marginal note:Adjudicative decisions

  (2) The Commissioner must refuse to deal with a disclosure or to commence an investigation if he or she is of the opinion that the subject matter of the disclosure or the investigation relates solely to a decision that was made in the exercise of an adjudicative function under an Act of Parliament, including a decision of the Commissioner of the Royal Canadian Mounted Police under Part IV of the Royal Canadian Mounted Police Act.

• Marginal note:Jurisdiction of the Conflict of Interest and Ethics Commissioner

  (2.1) The Commissioner must refuse to deal with a disclosure or to commence an investigation if he or she is of the opinion that the subject-matter of the disclosure or the investigation is within the jurisdiction of the Conflict of Interest and Ethics Commissioner under the Conflict of Interest Act and must refer the matter to the Conflict of Interest and Ethics Commissioner.

• Marginal note:Notice of refusal

  (3) If the Commissioner refuses to deal with a disclosure or to commence an investigation, he or she must inform the person who made the disclosure, or who provided the information referred to in section 33, as the case may be, and give reasons why he or she did so.

Marginal note:Delegation

• 25 (1) The Commissioner may delegate to any employee in the Office of the Public Sector Integrity Commissioner any of his or her powers and duties under this Act, except

  • (a) the power to delegate under this section;

  • (b) the power to decide not to deal with a complaint filed under subsection 19.1(1);

  • (c) the power in section 20.2 to approve or reject a settlement;

  • (d) the power in section 20.4 to apply to the Tribunal;

  • (e) the power in section 20.5 to dismiss a complaint;

  • (f) the duties in paragraphs 22(g) and (h) to review the result of investigations, to report findings and to make recommendations;

  • (g) the power in section 24 to refuse to deal with a disclosure or to commence an investigation, the power in that section to cease an investigation and the duty in that section to provide reasons;

  • (h) the power to issue, in the exercise of any powers referred to in subsection 29(1), a subpoena or other request or summons to appear before the Commissioner or a person appointed to conduct an investigation;

  • (i) the power in section 33 to commence an investigation;

  • (j) the power in section 34 to refer a matter to another authority;

  • (k) the power in subsection 35(1) to remit information;

  • (l) the power to request that a chief executive provide notice as referred to in section 36; and

  • (m) the power in section 37 and the power and duties in section 38 to make a report.

• Marginal note:Restriction concerning certain investigations

  (2) The Commissioner may not delegate the conduct of an investigation that involves or may involve information relating to international relations, national defence, national security or the detection, prevention or suppression of criminal, subversive or hostile activities, except to one of a maximum of four officers or employees of the Office of the Public Sector Integrity Commissioner specifically designated by the Commissioner for the purpose of conducting those investigations.

Marginal note:Access to legal advice

• 25.1 (1) The Commissioner may provide access to legal advice to

  • (a) any public servant who is considering making a disclosure of wrongdoing under this Act;

  • (b) any person who is not a public servant who is considering providing information to the Commissioner in relation to any act or omission that may constitute a wrongdoing under this Act;

  • (c) any public servant who has made a disclosure under this Act;

  • (d) any person who is or has been involved in any investigation conducted by a senior officer or by or on behalf of the Commissioner under this Act;

  • (e) any public servant who is considering making a complaint under this Act regarding an alleged reprisal taken against him or her; or

  • (f) any person who is or has been involved in a proceeding under this Act regarding an alleged reprisal.

• Marginal note:Condition

  (2) The Commissioner may provide the access to legal advice only if the public servant or person satisfies the Commissioner that they do not have other access to legal advice at no cost to them.

• Marginal note:Additional condition

  (3) In addition to the condition referred to in subsection (2), the Commissioner may provide access to legal advice to a public servant referred to in paragraph (1)(a) or a person referred to in paragraph (1)(b) only if the Commissioner is of the opinion that the act or omission to which the disclosure or the information relates, as the case may be, likely constitutes a wrongdoing under this Act and that the disclosure or the provision of the information is likely to lead to an investigation being conducted under this Act.

• Marginal note:Maximum payment

  (4) The maximum amount that may be paid by the Commissioner under this section for legal advice provided or to be provided to any particular public servant or person in relation to any particular act or omission that may constitute a wrongdoing or reprisal is $1,500.

• Marginal note:Maximum value

  (5) If, for the purpose of this section, the Commissioner chooses to provide access to legal advice to any particular public servant or person in relation to a particular act or omission that may constitute a wrongdoing or reprisal through legal counsel employed in his or her office, the monetary value of the time spent by them in providing the legal advice may not be more than $1,500.

• Marginal note:Deemed amount

  (6) If the Commissioner is of the opinion that there are exceptional circumstances, the maximum amount provided for in subsections (4) and (5) is deemed to be $3,000.

• Marginal note:Factors

  (7) In determining the amount to be paid for legal advice, or the monetary value of the time to be spent providing it, as the case may be, the Commissioner must take into account

  • (a) the degree to which the public interest may be affected by the subject-matter of the disclosure or the information provided; and

  • (b) the degree to which the public servant or person seeking the legal advice may be adversely affected as a result of his or her involvement in making the disclosure, providing the information, making the complaint or participating in the investigation or the proceeding, as the case may be.

• Marginal note:Grants and contributions

  (8) For the purpose of providing access to legal advice under this section, the Commissioner may make grants or contributions in accordance with terms and conditions approved by the Treasury Board.

• Marginal note:Solicitor-client basis

  (9) The relationship between the public servant or person to whom access to legal advice is provided under this section and the legal counsel providing the advice is that of solicitor and client.