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Whistleblowers:

Those who disclose information about something they believe to be harmful to the public's interest, occurring in business or in government. It includes disclosure to authorities within the organization, to outside agencies or to the media.

 

Reason for Whistleblowing Laws

Whistleblowing provisions are designed to facilitate regulation and enforcement of laws by encouraging employees to report evidence essential for industry regulation and the prosecution of corporate wrongdoers.

 

New Brunswick is the only Canadian Jurisdiction Providing Specific Protection for Whistleblowers

In New Brunswick, Section 28 of the Employment Standards Act, Chap. E-7.2 provides, in part, as follows:

  • 28. Notwithstanding anything in this Act an employer shall not dismiss, suspend, lay off, penalize, discipline or discriminate against an employee if the reason therefor is related in any way to
    • (b) the making of a complaint or the giving of information or evidence by the employee against the employer with respect to any matter covered by this act; or
    • (c) the giving of information or evidence by the employee against the employer with respect to the alleged violation of any Provincial or federal Act or regulation by the employer while carrying on the employer's business; or if the dismissal, suspension, layoff, penalty, discipline or discrimination constitutes in any way an attempt by the employer to evade any responsibility imposed upon him under this Act or any other Provincial or federal Act or regulation or to prevent or inhibit an employee from taking advantage of any right or benefit granted to him under this Act.

 

Statutes that Address Whistleblowing

  • Ontario's two main environmental statutes, the Environmental Protection Act, R.S.O. 1990, c. E.19 and the Environmental Bill of Rights, S.O. 1993, c. 28, contain extensive protections for employees who have been discharged, disciplined or harassed for complying with Ontario's environmental legislation.

    Under both statutes, employees who have had reprisals taken against them are authorized to file a complaint with the Ontario Labour Relations Board, which will first try to effect a settlement or, if unsuccessful, hold an inquiry into the complaint. If the Board finds the employee's complaint justified, it has broad powers to order rectification, reinstatement or compensation. Because Ontario's Environmental Protection Act prohibits an employer from taking reprisals against an employee for complying with the Act, an employer who contravenes this section could be prosecuted under s. 186 of the Act, which states that every person who contravenes the Act is guilty of an offence.
  • The Canadian Environmental Protection Act, R.S.C. 1985, c. C-15.3 ("CEPA") also contains a whistleblowing provision. It declares that no federal government employee shall be disciplined, dismissed or harassed for reporting on the release of certain toxic substances to a CEPA inspector. These provisions have been criticized for applying to only a limited number of violations under CEPA, for protecting only reports to a CEPA inspector, rather than the media or other officials, and for extending only to federal public servants, rather than all employees in the federal sphere (Environment Canada, CEPA Issue Elaboration Paper #10 -- Public Participation for Environmental Protection, 1994, pp. 119-20).
  • Ontario's Occupational Health and Safety Act, R.S.O. 1990, c. O.1 prohibits employers from taking reprisals against a worker because the worker has complied with the Act, sought its enforcement, or given evidence in a proceeding brought under the Act. Alleged contraventions are dealt with either by binding arbitration pursuant to a collective agreement, if one exists, or by filing a complaint with the Ontario Labour Relations Board. If a penalty for contravention is not established in the collective agreement, the Board can substitute such other penalty that to the Board seems "just and reasonable in all the circumstances".
  • The employment standards provisions in the Canada Labour Code, R.S.C. c. L-2, which apply to employers under federal jurisdiction, contain similar protections for employees who have testified, given information to an inspector, or sought enforcement of the Code. Employers who contravene these provisions are guilty of a summary conviction offence and liable to a fine of up to $15,000.
  • The Canadian Human Rights Act, R.S.C. 1985, c. H-6, prohibits any person from threatening, intimidating, or discriminating against an individual because that individual has made a complaint, given evidence, or assisted in the initiation or prosecution of a complaint under the Act.

 

Whistleblowing on One's Self - (Immunity from Prosecution can be Extended to Companies)

Canada's Competition Bureau's immunity policy was initiated in 1991, when then Director Howard Wetston outlined nine factors that "could be relevant in determining whether to recommend immunity from prosecution to the Attorney General" (Wetston, "Notes for an Address to the Canadian Corporate Counsel Association", Aug. 19, 1991)

  1. the firm must be the first to approach the Bureau with evidence of the offence;
  2. the firm must provide full and frank disclosure of the facts;
  3. the firm must cooperate fully with the Bureau's investigation, and with any ensuing prosecution;
  4. the evidence provided by the firm must be important and valuable in terms of any prosecution or other legal proceeding;
  5. the firm must be prepared to make restitution commensurate with the facts and its responsibility in the matter;
  6. the evidence must confirm that the firm took immediate steps to terminate the activity and report it to the Director as soon as it was discovered by its senior executives;
  7. a prior record of antitrust violations will be a significant factor in deciding whether to recommend immunity;
  8. the firm should usually be prepared to consent to the issuance of a prohibition order; and
  9. the role of the firm in the conduct in question.

In a Canadian Bar Association speech in October 1993, Francis Rioux, Senior Counsel at the Department of Justice, suggested four factors that would be taken into account to determine whether immunity could be granted in these cases:

  1. At what point in time did the corporation come forward as compared to others.
  2. Whether at the time the corporation comes forward there exists sufficient evidence against the corporation to sustain a conviction against it or other parties to the conduct.
  3. The importance, degree and completeness of the cooperation and the importance of the evidence offered, if any.
  4. The corporation's relative culpability in the conduct and past record.

 

May, 2001 Newspaper Article on the need for Stronger Whistleblower Laws

Whistleblowing: Breaking the Silence of the Lambs

by Rosella Melanson

There are people in Canada who would report something they know - health or environmental hazards, abuse, theft, corruption - if they felt protected from retaliation.

But whistleblowers sometimes pay a price in Canada. In any case they don't get nominated for the Order of Canada.

(Whistleblowers are usually defined as those who disclose information about something they believe to be harmful to the public's interest, occurring in business or in government. It includes disclosure to authorities within the organization, to outside agencies or to the media.)

Earlier this year, an inquiry into 12 infant deaths at a Winnipeg hospital concluded that at least five of the deaths were preventable - and that whistleblower legislation would have helped protect nurses from reprisal when reporting a particular surgeon.

Scientists Margaret Haydon and Shiv Chopra complained last year they were being forced to approve an unsafe growth hormone for cows. Their employer, Health Canada, protector of Canadians, imposed a gag order! A judge then ruled the scientists have a constitutional right to speak if they have concerns about public safety. Recently, Ms. Haydon spoke out again to say the Canadian ban of Brazilian beef was not based on science. Another gag order was imposed.

"I was doing my job as a public servant", Ms. Haydon said when she won a Whistleblower award recently.

Dr. Nancy Olivieri, senior scientist at the Hospital for Sick Children, discovered evidence suggesting a drug she was testing might be life threatening. The firm which partly funded her research told her not to publish the results; the Hospital and the University of Toronto left her ‘hung out to dry'. She eventually won.

Joanna Gualtieri reported on lavish spending by Foreign Affairs personnel abroad, concerns which the Auditor General of Canada had raised years earlier. She eventually had to go on medical leave and is now trying to sue for the harassment she says she suffered; she has started a group of Ottawa whistleblowers.

A government-commissioned report recently said the Department of Fisheries and Oceans "treats public criticism ... by employees as an offence akin to ... mutiny on the high seas."

It is worlds away from a British government suggestion that whistleblowers be included in the British Honours system for their good corporate citizenship. The British whistleblower-protection law is said to be the most far-reaching in the world, even voiding gagging clauses in contracts. There is now a regular whistleblowers' column in the London Times Higher Education Supplement.

In numerous international disasters, whistleblowers had in fact spoken out about the risks and suffered penalties for their public-spiritedness. The British law was enacted only after several inquiries into scandals revealed that employees had been too scared to report problems. Canada has had its share of similar episodes, including military scandals and cover-ups.

Most Canadians are not protected from retaliation - except in New Brunswick. We are one of the few jurisdictions in North America to offer protection. Since 1989, New Brunswick's Employment Standards Act has protected employees in the public or private sector who provide information about an employer's violation of a provincial or federal law. This legal protection is as yet untested - no complaints have been filed with the government - and covers only the 75 per cent of workers who are under provincial jurisdiction, but it is still to New Brunswick's credit. The very existence of such protection for whistleblowers should be an incentive for employers to comply with laws.

During the 1993 federal election, the Liberals promised to introduce whistleblower legislation in the first session of Parliament. To date, only private members' bills have been introduced, including two now under consideration. No law has been adopted.

Some federal laws on business competition and health and safety and the environment do offer some narrow protection to Canadians, but only if a complaint is made to a certain authority. Of course, some laws require whistleblowing: Everyone is required by law to report suspected child abuse.

As a result of a series of scandals about covered-up manufacturing defects, Japan - the land of righd company loyalty - is now encouraging employees to blow the whistle when they have information of concern.
Recent laws in the United States also champion whistleblowing, while establishing a distinction between ethical whistleblowing and groundless complaints.

One American law gives whistleblowers a percentage of the savings realized when inappropriate activity is ended by their disclosure: In its first six years of implementation, $147 million has been saved and the average whistleblower has received $400,000.

American cases have included rports that a company was passing off false test results on the MX missile's guidance system.

Recently, two Florida journalists who had tried to report on the dangers of Monsanto's bovine growth hormone won a $425,000 judgment, the first time journalists have won a ‘whistle-blower' case against a news organization accused of distorting the news.

Movies such as The Insider and Silkwood made us marvel at the courage it took for decent persons to simply do their duty. The federal government - Health Canada actually - made a lot of hay when it used The Insider hero himself, Jeffrey Wigand, as a consultant on its dealings with tobacco companies.


We sure like them when they blow the whistle on the other guy.


Rosella Melanson is a writer residing in Moncton. Her weekly column, Subject to Debate, appears in the New Brunswick Telegraph Journal. She can be reached at rosellam@nbnet.nb.ca.

copyright: Rosella Melanson
First published in the New Brunswick Telegraph Journal May 2001.

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