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Best Practices
in Whistleblower
Legislation
AN ANALYSIS OF FEDERAL AND PROVINCIAL
LEGISLATION RELEVANT TO DISCLOSURES OF
WRONGDOING IN BRITISH COLUMBIA
carroll anne boydell, phd
INSTRUCTOR, DEPARTMENT OF CRIMINOLOGY
KWANTLEN POLYTECHNIC UNIVERSITY
PREPARED BY
ON BEHALF OF THE BRITISH COLUMBIA
FREEDOM OF INFORMATION AND
PRIVACY ASSOCIATION
Best Practices
in Whistleblower
Legislation
AN ANALYSIS OF FEDERAL AND PROVINCIAL
LEGISLATION RELEVANT TO DISCLOSURES OF
WRONGDOING IN BRITISH COLUMBIA
carroll anne boydell, phd
INSTRUCTOR, DEPARTMENT OF CRIMINOLOGY
KWANTLEN POLYTECHNIC UNIVERSITY
PREPARED BY
ON BEHALF OF THE BRITISH COLUMBIA
FREEDOM OF INFORMATION AND
PRIVACY ASSOCIATION
#103-1093 West Broadway
Vancouver B.C. V6H 1E2
Published by
First published in 2018
This work is licensed under the Creative Commons
Attribution-NonCommercial-NoDerivs 3.0 Unported License
To view a copy of this license, visit:
http://creativecommons.org/licenses/by-nc-nd/3.0/
Designed by Nelson Agustín
p: 604.739.9788
e: fipa@fipa.bc.ca
w: fipa.bc.ca
tw: @bcfipa
contents
Abstract .................................................................................................................. 4
Best Practices in Whistleblower Legislation:
An Analysis of Federal and Provincial Legislation
Relevant to Disclosures of Wrongdoing in British Columbia ....................................... 5
Who are Whistleblowers and How Do They Disclose Wrongdoing? ........................... 6
Importance of Whistleblowers to Detection of Wrongdoing ....................................... 6
Harms Incurred by Whistleblowers ...........................................................................8
What Compels Disclosure of Wrongdoing? ............................................................... 9
Best Practices in Whistleblower Protection Laws ......................................................10
Laws that Protect Whistleblowers in British Columbia ............................................. 12
Best Practice Principles and Whistleblowers Protections
in Federal and BC Laws .......................................................................................... 15
Discussion ............................................................................................................. 26
Conclusion ............................................................................................................ 33
References ............................................................................................................. 34
Table 1 : Summary of Consistency of Laws Relevant
to BC Whistleblowers with Best Practice Principles ................................................. 37
6WHISTLEBLOWER PROTECTIONS IN BC
best practice principles exist for laws,
regulations, and procedures aimed at the
protection of those who report wrongdoing.
The purpose of this paper is to examine
selected legislation containing whistleblower
protections that are relevant to those who
disclose wrongdoing in British Columbia to
determine how well they follow best practice
principles. Several best practice principles
were reflected in the legislation reviewed, and
the introduction of the new Public Interest
Disclosure Act (PIDA) in British Columbia
is a positive development in the protection
of whistleblowers who are employees of the
provincial government. However, not all best
practice principles are enshrined in the laws
examined here. For example, there are still
types of whistleblowers that do not have
adequate protections, such as private sector
workers and those in the public sector who
are not employed by a provincial ministry,
government body, or office. In addition,
though types of protected disclosures have
been expanded under the PIDA, there are
still some disclosures of wrongdoing that may
remain unprotected, such as interference
with freedom of information requests. Some
issues were also found related to transparency
of decisions made about investigations into
disclosures of wrongdoing and complaints of
reprisal against whistleblowers, as well as about
the accountability of government agencies in
protecting whistleblowers. Therefore, some
refinements and amendments to whistleblower
laws and disclosure management procedures are
needed to ensure that adequate protections are
afforded to those who disclose wrongdoing in
British Columbia.
ABSTRACT
WHISTLEBLOWER PROTECTIONS IN BC 7
a common phrase invoked when a noble act
is met with negative consequences is that
no good deed goes unpunished. There are
few that appreciate this axiom more than a
whistleblower, one who either discloses the
wrongdoing of others or refuses to engage
in wrongdoing. Whistleblowers have been
identified as critical to the detection of
corruption, disclosing wrongdoing committed
in a variety of organizational settings. However,
whistleblowers can face reprisals for their
disclosures. In response, whistleblowers
protection laws have been increasingly adopted
over the last few decades across the world.
Alongside these developments, best practice
principles have been established to guide the
creation and revision of whistleblower laws and
policies.
The purpose of this paper is to examine
legislation relevant to whistleblowers in British
Columbia (BC) and the extent to which
they conform to best practice principles. In
this analysis, best practices in whistleblower
legislation - informed by the work of advocacy
groups, government organizations, analysis
of law, and research - will be reviewed. Next,
selected federal and provincial laws relevant
to whistleblowers in BC will be reviewed
and critically analyzed to determine how
well they conform to best practice principles.
Important goals in this paper are to highlight
how features of whistleblower protections
afforded to those in BC promote government
accountability and transparency, as well as how
this legislation affects freedom of information,
access to information, and protection of privacy.
This analysis will examine both stand-alone
laws aimed at protecting whistleblowers and
laws containing provisions for whistleblower
protections, but which have a main purpose
other than protection of whistleblowers.
Best Practices
in Whistleblower
Legislation
AN ANALYSIS OF FEDERAL AND PROVINCIAL
LEGISLATION RELEVANT TO DISCLOSURES OF
WRONGDOING IN BRITISH COLUMBIA
8WHISTLEBLOWER PROTECTIONS IN BC
though definitions vary among researchers
and legal scholars, the most widely used
definition of an act of whistleblowing is “the
disclosure by organization members (current
or former) of illegal, immoral or illegitimate
practices under the control of their employers,
to persons or organizations that may be able
to effect action” (Near & Miceli, 1985, p. 4).
Others also consider the refusal to engage in
wrongdoing directed by an employer to be
an act of whistleblowing (e.g., Transparency
International, 2013). Whistleblowers vary in
their relationship to the organization to whom
the disclosure of wrongdoing is relevant, as
well as the channel via which they report. First,
whistleblowers may be insiders that are internal
to an organization, such as an employee or
volunteer, or outsiders that are external to the
organization, such as a shareholder or journalist
(Smaili & Arroyo, 2017). Second, where these
mechanisms are available, whistleblowers may
choose internal channels to report wrongdoing
to designated persons or offices internal to their
organization, or they may choose to report to
an external channel outside their organization
like an independent regulatory body or a media
outlet.
whistleblower disclosures are critical to the
detection of a variety of wrongdoings, including
“exposing corruption, fraud, mismanagement
and other wrongdoing that threatens public
health and safety, financial integrity, human
rights, the environment, and the rule of law”
(Transparency International, 2018). Such
disclosures allow for the early detection
and internal management of wrongdoing,
as well as to allow for corrective actions to
be taken (Keith, Todd, & Oliver, 2016). This
early detection may prevent more substantial
harms or even health and safety disasters from
occurring (Lewis, 2008). Timely detection of
corruption is in the best interest of governments
and organizations, and whistleblower
disclosures are increasing being used to detect
and combat corruption internationally (de
Maria, 2006). Kaplan et al. (2010) note that
because acts of fraud often go undetected by an
organization’s internal controls, whistleblowing
is critical to its detection. Such disclosures are
also arguably most critical where no physical
record of wrongdoing exists, and only the
whistleblower and the perpetrator could
disclose the act.
Given the creation of substantial legislation
in the US related to the reporting of financial
misconduct and protections of disclosures
about this misconduct (i.e., Dodd-Frank Act,
2010; Sarbanes-Oxley Act, 2002), laws and
protections for those who disclose financial
misconduct have received substantial attention
in whistleblowing research. Less research
attention has been paid to other types of
whistleblower disclosures, such as exposing
Who are the Whistleblowers and How Do They Disclose Wrongdoing?
Importance of Whistleblowers to Detection of Wrongdoing
WHISTLEBLOWER PROTECTIONS IN BC 9
interference with access to information. As per
BC’s Freedom of Information and Protection
of Privacy Act (FIPPA, 1996), those who make
freedom of information (FOI) requests have
legal rights to certain public and personal
information, with some exceptions, and to
receive that information in a timely manner,
barring necessary delays or appeals to the
process. Applicants also have the right to be
informed about progress in the FOI request,
as well as to be provided with reasons for the
disclosure or nondisclosure of their personal
information to them. Examples of possible
misconduct that can occur could include
engagement in acts that are offences against the
FIPPA, such as interference with investigations
conducted by the Office of the Information and
Privacy Commissioner (OIPC). Other examples
of interference with FIPPA rights that are not
offences but are still considered to be acts of
wrongdoing include inappropriate redactions
of information, delays in responding to
requests past statutory deadlines, arbitrary fee
assessments, and failing to provide prescribed
information on FOI requests. Given that there
will be no record of some of these actions to
conceal or unduly delay information that is the
subject of FOI requests, or directives to engage
in these behaviours, whistleblowers can be
critical to the uncovering of such wrongdoing.
One example in which a whistleblower
exposed serious interference with access to
information requests is what has been termed
the triple-delete email scandal (“Email scandal
uncovered”, 2015). In May 2015, Tim Duncan,
a former Executive Assistant to the Minister of
Transportation and Infrastructure, submitted a
letter to the OIPC indicating that in November
2014, he was instructed by a fellow staffer,
George Gretes, to delete multiple emails that
were the subject of an FOI request made by
NDP MLA Jennifer Rice. The request sought
information about meetings held by officials
discussing what has become know as the
“Highway of Tears”. The Highway of Tears
refers to Highway 16, which runs through
Northern BC, and along which multiple cases
have been reported of women going missing
and/or having been murdered. Many of
these cases remain unsolved (“Email scandal
uncovered”, 2015). The phrase “triple-delete”
refers to the deletion of original emails, copies
of those emails in deleted item folders, and any
back-ups of emails. In a report from the OIPC,
this practice was found to have been part of a
culture within the BC Liberal Government of
destroying information to avoid legal mandates
to release it to the public (Access Denied, 2015).
Duncan indicated that upon refusing to delete
the emails, Gretes took his computer keyboard
and deleted the emails himself. In 2016, Gretes
plead guilty to two charges under BC’s FIPPA
for willfully misleading the OIPC investigation
into this case (Dickson, 2016). Duncan
concluded his letter to OIPC stating that it is
“[his] belief that the abuse of the Freedom of
Information process is widespread and most
likely systematic”. Since this case, the practice
of triple deletion of emails has been banned by
the government. Without Duncan’s disclosure
of wrongdoing, this practice of interference with
access to information requests by destroying
email records may have been permitted to
continue.
10 WHISTLEBLOWER PROTECTIONS IN BC
whistleblowers make disclosures that can be
used to stop current and prevent future harms
to individuals, organizations, the environment,
and other entities. However, though their
disclosures could prevent harms to others,
whistleblowers themselves can incur harm
resulting from intended and actual disclosures.
First, there are psychological costs to engaging
in whistleblowing. For example, whistleblowers
report anxiety, depression, panic attacks, and
feelings of extreme guilt before, during, and
after the disclosure of wrongdoing (Watts &
Buckley, 2017). Some of these issues are the
direct result of reprisals that whistleblowers
can face for their disclosures, a reaction that
is argued by some (e.g., Sinzdak, 2008) to
stem from whistleblowers’ role as a watchdog.
Harms to whistleblowers include “career
and health-shattering reprisals when they
report wrongdoing” (de Maria, 2006, p. 644),
endangering their jobs, lives, and relationships.
In a study by Dussuyer and Smith (2018),
whistleblowers and directors who managed
whistleblower disclosures were interviewed.
All participants indicated that there were
a range of negative consequences faced by
whistleblowers upon discovery that they had
disclosed wrongdoing. Reprisals reported in this
study included “criticism, denial, blaming and
retaliation by management, feelings of fear, and
actual bullying and harassment [and]…violent
mistreatment or assault of the whistleblower”
(Dussuyer & Smith, 2018, p. 6). In addition to
psychological trauma, participants indicated
that they experienced physical health issues,
exhaustion, and a profound sense of having
been treated unjustly after providing a
disclosure of wrongdoing. Bullying (e.g., Park,
Bjørkelo, & Blenkinsopp, 2018) and harassment
from colleagues (e.g., Bjørkelo, Einarsen,
Nielsen, & Matthiesen, 2011), have been
reported by whistleblowers in other studies as
well. Others have found that whistleblowers
may be portrayed as mentally unstable to
undermine their claims of wrongdoing (Kenny,
Fotaki, & Scriver, 2018) or even may face death
threats because of their disclosures (Richardson
& McGlynn, 2011). Thus, the personal costs to
those who provide disclosures of wrongdoing
can be substantial.
In some cases, harms faced by
whistleblowers are numerous and protracted.
For example, Sylvie Therrien, a fraud
investigator with Service Canada in Vancouver,
BC, was fired in 2013 after she reported to
a Montreal newspaper that she and fellow
employees were directed by their employer
to meet quotas whereby they were to find
ways to reduce recipients’ EI payments to save
$485 000 annually (Johnson, 2018). She was
fired from her position and though her claims
were initially denied by the Conservative
government, they later indicated that the dollar
amounts for reductions in payments were
targets and not in fact quotas (Vincent, 2016).
After her employment was terminated, Therrien
has seen her income reduced to less than
half of what she made as a fraud investigator
with Service Canada, forcing her to downsize
her living arrangements, and recently to file
Harms Incurred by Whistleblowers
WHISTLEBLOWER PROTECTIONS IN BC 11
for personal bankruptcy (Johnson, 2018). In
2017, Therrien was given leave to appeal her
termination as an EI investigator (Therrien v.
Canada, 2017). Her dispute of her wrongful
termination is still ongoing in 2018, five years
after her initial disclosure.
Legal protections for whistleblowers are
clearly needed to prevent what can be severe
reprisals for disclosure of wrongdoing and,
as a result, remove any fear that someone
with knowledge of wrongdoing might have
that prevents them from disclosing it. Such
protections increase the likelihood of openness
and accountability in both public and private
sector workplaces and entrench the right of
citizens to disclose wrongdoing, which benefits
society (Transparency International, 2018).
These protections are especially important
when considering that multiple whistleblowers
interviewed in Dussuyer and Smith (2018) were
insistent that they did not identify as victims,
despite reporting that they had experienced
harms once identified as having disclosed
wrongdoing. Those who reject being labelled as
a victim might be less likely to seek remedies
for harms that they face. Therefore, in these
cases, it is critical to develop laws that attempt
to deter reprisals against whistleblowers who
disclose wrongdoing.
given the harms that whistleblowers can face,
it can be difficult to understand why anyone
would want to disclose wrongdoing. A model
called the whistleblower triangle has been
developed recently to explain the conditions
under which whistleblowers are more likely
to disclose wrongdoing. In this model, three
factors are considered in relation to making
a disclosure. The first factor is pressures/
incentives, or whistleblowers’ motivations to
report wrongdoing. Motivations to disclose
may include psychological, social, and personal
moral pressures, having an internal locus of
control, pressures from media, a prescribed duty
(i.e., a job requirement), financial pressures,
concerns for one’s reputation, or even a desire
to seek revenge (Smaili & Arroyo, 2017).
Though beyond the scope of this analysis,
interested readers should consult Cho and Song
(2015) for a review of characteristics of the
individual, disclosure context, and wrongdoing
that motivate whistleblowing reports. The
second factor is opportunity, which refers to
the amount and quality of resources, both
internal and external to the organization, that
whistleblowers can access to assist them in
reporting wrongdoing. Disclosures are more
likely when employees perceive that there
are internal channels in their organization via
which they can report wrongdoing (Miceli
& Near, 1992), when they perceive that they
have the competence and resources to disclose
wrongdoing, and when their organization has
ethical codes or provisions that will protect
them if they disclose wrongdoing (Cho & Song,
2015; Smaili & Arroyo, 2017). The third factor
is rationalization, whereby a whistleblower
must justify their decision to report in response
What Compels Disclosure of Wrongdoing?
12 WHISTLEBLOWER PROTECTIONS IN BC
there are various formal protections for
whistleblowers from harms that could result
from disclosures that they provide. One
approach is the creation of stand-alone
legislation that is created specifically to protect
whistleblowers. Critics of such legislation
argue that some laws are like cardboard shields
(e.g., Devine, 2016; Vandekerckhove & Lewis,
2012), appearing but failing to offer adequate
protections for whistleblowers. Thus, efforts
have been made by to identify the features that
whistleblower laws should have to ensure that
they are not cardboard shields, but rather that
they act as metal shields for whistleblowers
(Devine, 2016).
Several groups have made efforts to develop
best practice principles for whistleblower
protection legislation. For example, the G20
Anticorruption Action Plan for the Protection
of Whistleblowers outlines best practices and
guidelines for the creation of whistleblower
protection laws (see https://www.oecd.org/
Best Practices in Whistleblower Protection Laws
to the discomfort that results from cognitive
dissonance (Festinger, 1957), which is when an
unpleasant emotional reaction is experienced
by a person when his or her actions and beliefs
are in conflict. For a whistleblower, this is
hypothesized by Smaili and Arroyo (2017) to
result from the conflict between the need to
disclose wrongdoing and the awareness that
disclosure could result in serious and negative
consequences for themselves or others (e.g.,
stakeholders in an organization or fellow
employees). Rationalization can occur before or
after disclosure of wrongdoing. As argued under
this model, rationalizing disclosures as being
positive actions should increase the likelihood
of disclosures being made.
When considered alongside all three factors
of the model, it is clear that laws, procedures,
and regulations that protect whistleblowers
could increase the likelihood that disclosures
of wrongdoing are made. That is, having laws
that protect whistleblowers sends a message
that society values the disclosure of wrongdoing
and that those actions should be protected.
Therefore, this could motivate disclosures
from those who believe it is their civic duty
to report wrongdoing. Further, whistleblowers
should be more likely to report if they can see
that, under the law, there are resources and
protections that exist for them that are internal
and external to their organizations that can
help them to navigate the disclosure process.
Finally, laws could assist in rationalizing
the act of disclosing wrongdoing and help
to reduce cognitive dissonance that results
from disclosure. If cognitive dissonance
results from the conflict between reporting of
wrongdoing and the fact that this could result
in personal harm, and laws prohibit harms
perpetrated as a result of disclosing, potential
reprisals would be less likely to occur. As a
result, potential whistleblowers could feel less
conflicted over whether they should report
wrongdoing or protect themselves from harm.
Therefore, having proper legal protections for
whistleblowers may increase the likelihood that
disclosures of wrongdoing will be made.
WHISTLEBLOWER PROTECTIONS IN BC 13
g20/topics/anti-corruption/48972967.pdf).
However, given the provision in the Plan which
indicates that its intended purpose is not to
analyze existing legislation, which will be done
here, it will be not be discussed further.
Another group that has developed best
practice principles for laws that protect
whistleblowers is Transparency International,
a group comprised of over 100 chapters
worldwide that is dedicated to combatting
acts of corruption. These guidelines are aimed
at assisting countries in the development of
new and existing legislation that protects
whistleblowers who make disclosures in the
public interest (Transparency International,
2018). These best practice features of
whistleblower protection legislation are
based on “input from whistleblower experts,
government officials, academia, research
institutes and NGOs from all regions”
(Transparency International, 2013, pg. 3).
They argue that the guiding principles for
whistleblower protection legislation should be
the protection of individuals and disclosures
of wrongdoing in both the public and private
sector via “accessible and reliable channels
to report wrongdoing, robust protection from
all forms of retaliation, and mechanisms for
disclosures that promote reform…and prevent
future wrongdoing” (Transparency International,
2013, pg. 4). Their recommendations will
be discussed throughout this paper and are
grouped into multiple categories. Some refer
to the scope of application of the law, such as
who and what types of disclosures should be
protected, and the standard for determining if
a person or disclosure is protected. Principles
surrounding protection of whistleblowers are also
provided, such as protection from retaliation,
protection of identity via confidential or
anonymous reporting channels, requiring the
employer to prove reprisals and disclosures
were unrelated, protection of whistleblowers
from civil or criminal liability, personal
protection for threats to disclosers’ or their
families’ safety, protection of wrongfully
accused from false disclosures, and preservation
of rights to disclose. Other recommendations
pertain to disclosure procedures. These principles
include guidelines surrounding the need for
visible, transparent, thorough, and timely
procedures to investigate and manage
disclosures and complaints of reprisal; for
disclosing to external organizations or to the
public; for resources for whistleblowers; and
for disclosing national security issues or matters
of secrecy. Relief and participation principles
also are included in their recommendations,
including remedies for reprisals, the right
to fair hearings, rights of whistleblowers to
participate in investigations, and rewards or
recognition for disclosing wrongdoing. Legislative
structure, operation, and review principles include
the creation of stand-alone whistleblower
legislation; publication of data about
whistleblower complaints and investigations;
guidelines for review and consultation with key
stakeholders; and the need for comprehensive
training of organizations and their management
and staff in policies in whistleblower laws and
procedures. Finally, enforcement principles are
articulated for whistleblower protection laws,
including having an independent agency that
vets complaints about reprisals, punishments
14 WHISTLEBLOWER PROTECTIONS IN BC
for reprisal, and follow-up on whistleblower
investigations. These principles are described in
more detail in subsequent sections of this paper.
Interested readers can refer to the full list of
principles in Transparency International (2013)
or to an abridged list of “Dos” and Don’ts” for
those creating or revising existing whistleblower
policies and laws in Transparency International
(2018).
Finally, the Global Accountability Project
(GAP), a not-for-profit public interest
law firm specialising in the protection of
whistleblowers, has also developed best practice
guidelines for legislation and policy. These 20
recommendations were developed based on
the GAP’s 35 years of operational experience
and the analysis of whistleblower protections
in 31 nations that have “minimally credible
dedicated whistleblower laws” (see Devine,
2016 for these guidelines). There is substantial
overlap between the GAP guidelines and the
Transparency International (2013), so for the
sake of simplicity, the latter will be discussed
here primarily.
the following section contains brief
descriptions of laws which protect
whistleblowers in BC that will be reviewed
here against best practice principles. Each
law selected for analysis in this paper will
be described in more detail in subsequent
sections. It is important to note that there are
other laws and policies that exist that apply
to whistleblowers in BC (such as municipal
government whistleblower policies). However,
while worthy of study, their analysis is beyond
the scope of this paper. The laws reviewed
here were selected because they apply to a
substantial number of potential whistleblowers
in BC. Different municipal laws, for example,
will only apply to certain individuals, and
inclusion of too many laws in this analysis
would serve to confuse the reader. However, a
separate review of whistleblower laws in various
municipalities in BC would be a worthwhile
research endeavour.
CRIMINAL CODE OF CANADA
The Criminal Code of Canada (CCC, 1985),
which codifies most criminal offences and
procedures in Canada, affords some protections
for both whistleblowers in public and private
sectors. Specifically, section 425.1 of the
Canadian Criminal Code describes offences
related to reprisals against whistleblowers and
the punishments associated with those offences.
Subsection 1 indicates that anyone in authority
over an employee may not engage in or threaten
to demote, terminate, or adversely affect the
employment of an employee to prevent them
from or punish them for disclosing information
to law enforcement that their employer, fellow
employees, or directors of a corporation are or
have committed criminal acts.
PUBLIC SERVANTS DISCLOSURE
PROTECTION ACT
The Public Servants Disclosure Protection
Act (PSDPA, 2005) was enacted to encourage
Laws that Protect Whistleblowers in British Columbia
WHISTLEBLOWER PROTECTIONS IN BC 15
federal government employees to report
wrongdoing in their workplace and to
protect them from fear of reprisal for such
disclosures (Keith, Todd, & Oliver, 2016). Those
protected under this Act includes most federal
government employees, as well as contractors
external to the federal public service that
have information about wrongdoing within
the government. The Act outlines multiple
types of disclosures of wrongdoing that are
protected. It also requires that procedures be set
up to manage disclosures from whistleblowers
by a chief executive in each sector. The
PSDPA indicates to whom and when that
protected disclosures may be made, prohibits
reprisals against those who provide protected
disclosures, and identifies specific acts that
constitute reprisal. The PSDPA indicates the
duties, powers, and requirements of the Office
of the Public Sector Integrity Commissioner
in conducting investigations of complaints
of reprisal against whistleblowers. It also
describes the duties and powers of the Public
Sector Disclosure Protection Tribunal, to which
the Public Sector Integrity Commissioner may
refer reprisal complaints after an investigation is
completed. The Tribunal has the power to order
remedies for victims of reprisal and to punish
those who in engage in reprisals. It also indicates
to whom notifications must be made about the
progress and outcome of investigations and
decisions made about complaints of reprisals.
Finally, the PSDPA outlines offences against
the act, including making false disclosures,
interfering with investigations related to the
administration of the act, and engaging in
reprisals against whistleblowers.
PUBLIC INTEREST DISCLOSURE ACT
OF BC
BC is one of the last provinces and
territories in Canada to have adopted stand-
alone legislation to protect whistleblowers (the
Northwest Territories have yet to adopt such
legislation at the date of writing of this report).
In May 2018, the Public Interest Disclosure Act
(PIDA, 2018) was passed in the BC Legislative
Assembly. Like the PSDPA, the PIDA is aimed
at the protection of public sector workers, in
this case at provincial government employees
who report serious wrongdoing. Modelled
after similar legislation in other Canadian
provinces and some Commonwealth countries,
BC’s PIDA was proposed after an inquiry
into the firings of provincial employees in the
Ministry of Health in 2012 (Ministry of the
Attorney General, 2018). Like the PSDPA, the
PIDA (2018) includes the requirement to have
procedures to manage whistleblower disclosures
in each ministry, government body, and
office. It also indicates what can and cannot
be included in disclosures, and what types of
disclosures are protected. The PIDA allows
for those who intend to make a disclosure of
wrongdoing to seek advice and indicates to
whom that disclosures can be made and when.
The PIDA also outlines who may conduct
investigations of disclosures and complaints
of reprisal and when those investigations may
be paused or halted. The PIDA describes
to whom and what must be contained in
summaries, notifications, and reports of the
progress and outcomes of those investigations.
Under this act, the Ombudsperson is permitted
to make recommendations that result from
16 WHISTLEBLOWER PROTECTIONS IN BC
these investigations and to report which
recommendations are implemented. Numerous
statutory offences, including making false
disclosures, reprisals against whistleblowers,
and interference with investigations related to
the act, are also outlined.
FREEDOM OF INFORMATION AND
PROTECTION OF PRIVACY ACT
The Freedom of Information and Protection
of Privacy Act (FIPPA, 1996) was created in
BC to hold public bodies accountable for their
actions, to protect the privacy of personal
information by permitting individuals the
rights to access public and personal records
and to have records of personal information
corrected, and to place limits on access to
information and the ability of public bodies
to use personal information. The FIPPA
sets out a duty of public bodies to assist in
accessing and correcting personal information
and indicates what information may not be
disclosed. Provisions are also included for
how information must be securely stored and
accessed. There are a number of possible
offences against the FIPPA, including actions
intended to mislead or obstruct those carrying
out investigations prescribed by this act,
unauthorized disclosure of personal information
or failing to inform that this occurred, engaging
in any acts prohibited by the Act (e.g., unlawful
storage of personal information), or failure of a
service provider or their employees or associates
to engage in behaviours compelled by the act
(e.g., reporting foreign demand for disclosure of
personal information).
Though the FIPPA is not a whistleblowing
statute, it includes some whistleblower
protections. Under section 30.3, it is prohibited
for any employer to engage in reprisals against
an employee who, acting in good faith and on
reasonable belief, discloses offences related to
this Act or who refuses to engage in actions in
contravention of the FIPPA. Reprisals are also
prohibited when the employer believes that
the employee will or has engaged in any of
these acts. Reprisals against whistleblowers are
offences under this Act as well.
PERSONAL INFORMATION PROTECTION
ACT
The Personal Information Protection Act
(PIPA, 2003) is a statute that controls “the
collection, use and disclosure of personal
information by organizations in a manner
that recognizes both the right of individuals
to protect their personal information and the
need of organizations to collect, use or disclose
personal information for purposes that a
reasonable person would consider appropriate
in the circumstances” (s. 2). Unlike most of
the laws reviewed here, this act mostly applies
to activities in the private sector. Provisions in
the PIPA include guidelines for compliance
with the act by organizations. The act prohibits
the collection, use, and disclosure of personal
information unless informed consent is
given by individuals or there are prescribed
circumstances that permit it. This act applies to
the collection, use, and disclosure of employee
information as well. Like the FIPPA, the PIPA
allows individuals the right to access and
correct personal information. Outlined in the
law are processes for requesting reviews of
WHISTLEBLOWER PROTECTIONS IN BC 17
decisions made about access to and correction
of personal information, or to make complaints.
Organizations must comply with any orders
made by the Information and Privacy
Commissioner that result from an investigation
into a review or complaint.
Like the FIPPA, the PIPA also includes
protections for those who, in good faith and
based on reasonable belief, report or intend
to report that an organization or an employee
of an organization has contravened the
act. Offences under the PIPA include using
deception to collect personal information,
destruction of information to circumvent a
request for access to information, obstruction
of anyone authorized to carry out their duties
under this Act, making false statements with
intent to mislead the Information and Privacy
Commissioner, failing to comply with orders
from the Commissioner, or engagement in
reprisal against those who report or fail to
engage in behaviours that contravene the Act.
here, the selected laws will be examined for
the extent to which they conform to best
practice principles for whistleblower legislation.
The analysis is divided into the categories of
best practice principles used by Transparency
International (2013). Table 1 provides an
overview of the best practice principles in each
piece of legislation reviewed here.
SCOPE OF APPLICATION PRINCIPLES
Transparency International (2013) argues
that legislation should have a broad definition
of wrongdoing, “including but not limited
to corruption; criminal offences; breaches
of legal obligation; miscarriages of justice;
specific dangers to public health, safety or the
environment; abuse of authority; unauthorised
use of public funds or property; gross waste or
mismanagement; conflict of interest; and acts
to cover up any of these” (pg. 4). It also argues
that the definition of a protected whistleblower
should extend beyond current employees to
people like “consultants, contractors, trainees/
interns, volunteers, student workers, temporary
workers, and former employees” (pg. 5), and
it should include those in both the public and
private sectors. Finally, protections should
be granted to whistleblowers who have a
“reasonable belief of wrongdoing” (pg. 5) at the
time that they make their disclosures, to protect
those who “make inaccurate disclosures made
in honest error” (pg. 5).
Section 425.1 of the CCC contains narrow
provisions for the protection of disclosures, as
it only pertains to disclosures of crime or quasi-
crimes (Keith et al., 2017). Broader definitions
of wrongdoing are included in the PSDPA
and the PIDA, whereby both offer protections
for disclosures of wrongdoing related to
contraventions of federal and provincial acts
and regulations, gross mismanagement in the
public sector, substantial and specific dangers
to life, health, or safety of persons, or to the
environment, or directing another person to
Best Practice Principles and Whistleblowers Protections
in Federal and BC Laws
18 WHISTLEBLOWER PROTECTIONS IN BC
carry out these acts (PSDPA, s. 8; PIDA, s. 7).
The PSDPA also includes a serious breach in
codes of conduct as a protected disclosure (s.
8). Types of wrongdoing under the FIPPA and
the PIPA for which disclosures are protected are
offences against their respective acts (FIPPA,
s. 30.3; PIPA, s. 54); in addition, protections
against reprisal are afforded to those who refuse
to engage in behaviours that contravene their
respective acts.
Types of defined whistleblowers under
the CCC are employees, which could be from
both public and private organizations. The
PSDPA applies to former and current public
servants, defined as anyone “employed in the
public sector” [s. 2(1)]. Public sector, in turn, is
defined in this act as “the departments named
in Schedule I to the Financial Administration
Act and the other portions of the federal public
administration named in Schedules I.1 to V
to that Act and the Crown corporations and
the other public bodies set out in Schedule
1 [s.2(1)]”. The PIDA applies to public
sector government employees. Under s.2(a)
(i-ii), the definition of “employee” includes
employees of ministries, government bodies,
and offices, as well as directors or officers,
and former employees if the wrongdoing they
disclose occurred while they were employed
by the government. Those appointed by the
Lieutenant Governor in Council under section
15 of the Public Service Act are also protected.
For both the PSDPA and the PIDA, engaging
in reprisals against external contractors who
have disclosed wrongdoing is also prohibited;
reprisals that are prohibited include termination
or failing to initiate a contract with a good
faith discloser or withholding payment from
a good faith discloser [42.2(2); s. 32]. Due to
the types of offences that could be reported
by whistleblowers under the FIPPA, this act
is most likely going to apply to public sector
workers as well, whereas the PIPA could apply
to both public and private sector workers.
Finally, the PSDPA [s. 42.2(1)], PIDA (s.12.1),
FIPPA (s. 30.3), and PIPA (s. 54) all incorporate
the “reasonable belief of wrongdoing” standard
in determining if protections for disclosure of
wrongdoing are afforded to whistleblowers.
PROTECTION PRINCIPLES
An important best practice principle is that
whistleblower laws should offer protection from
a variety of reprisals. Examples of harm are
“dismissal, probation and other job sanctions;
punitive transfers; harassment; reduced duties
or hours; withholding of promotions or
training; loss of status and benefits; and threats
of such actions” (Transparency International,
2013, pg. 5). Laws should protect against both
overt forms of reprisal like job termination,
and more discrete forms like being ostracized
(Transparency International, 2018). They
also recommend that those who refuse to
engage in wrongdoing should be extended
the same protections as those who disclose
wrongdoing. Transparency International (2013)
also recommends that whistleblowers should
have the option to make disclosures that are
confidential or anonymous. When bona fide
complaints are made that reprisals were taken
against those who disclose wrongdoing, it is
suggested that the burden of proof should shift
to the employer to establish that the sanction
WHISTLEBLOWER PROTECTIONS IN BC 19
against the worker and the disclosure are not
related. Protections are also recommended
against false accusations by prohibiting legal
protections for disclosures made that are
knowingly false. Finally, whistleblowers who
provide good faith disclosures should be
immune from civil and criminal responsibility
for the information that they reveal in
disclosures, complaints of reprisal, and
investigations of both.
Section 425.1 of the CCC prohibits
reprisals of disciplinary action, demotion,
and termination, or threats to do any of the
previous actions, to prevent or retaliate against
disclosures by employees. The PSDPA and
the PIDA prohibit disciplining, demoting,
and terminating whistleblowers, as well as
adversely affecting their working conditions or
threatening to engage in any of those actions
(PSDPA, s. 19; PIDA, s. 31). Further, in the
PIDA, these actions cannot be taken against
those who have sought advice on making a
disclosure, those who have made a disclosure,
or those who have participated in a disclosure
[s. 31(1)], and it does not have to be proven
that the whistleblower did make a disclosure
or cooperated with an investigation [s. 31(2)].
The FIPPA states that employers “must not
dismiss, suspend, demote, discipline, harass
or otherwise disadvantage an employee of the
employer, or deny that employee a benefit”
(s. 30.3) if employees make or the employer
believes that the employee has or will make a
protected disclosure. Similar wording is used in
section 54 of the PIPA.
The PSDPA (s. 44) and PIDA (s. 9) allow
for confidential disclosures to be made, while
under PIPA, whistleblowers can request
confidentiality of their disclosures (s. 55).
Confidentiality of whistleblower disclosures is
not addressed directly in the FIPPA or section
425.1 of the CCC. However, disclosures
under CCC s. 425.1 likely have confidentiality
protections that other disclosures of crime to
police do. As for the burden of proof being
on the employer to prove that the reprisal and
disclosure were not directly related, s. 35(2) of
the PIDA indicates that “the description of the
facts necessary to establish that a reprisal has
been taken or directed against the employee are
prima facie proof, in the absence of evidence
to the contrary, of the facts stated”. This
section seems to indicate that the burden of
proof is not on the discloser to show that the
reprisal and disclosure are directly related to
one another. None of the other laws reviewed
included specific provisions about the burden
of proof being on the employer that the
reprisal and disclosure were not connected.
However, multiple laws examined here address
false disclosures of wrongdoing. Those who
provide false disclosures of wrongdoing could
be charged with public mischief under section
140.1 of the CCC. Section 40 of the PSDPA
prohibits false disclosures to the Public Sector
Integrity Commissioner, while the PIDA [s.
41(1)], the FIPPA [74(1)(a)], and the PIPA
[56(1)(d)] indicate that it is an offence to make
false statements that mislead or intend to
mislead anyone tasked with carrying out duties
in their respective acts. In most cases, it was
mentioned that the disclosures must be made
in good faith to be protected [PSDPA, s. 2(1);
PIDA, s. 12; FIPPA, s. 30.3; PIPA, s. 52].
20 WHISTLEBLOWER PROTECTIONS IN BC
Another legal protection, waiver of legal
liability for making disclosures or participating
in investigations, was contained in some of the
legislation reviewed here. For instance, section
45 of the PSDPA protects the Public Service
Integrity Commissioner, as well as anyone
working on his or her behalf, from civil and
criminal liability for actions taken related to
the administration of the act. Similarly, section
32 can protect public servants who provide
information or evidence during an investigation
by the Commissioner from self incrimination.
Sections 42 and 44 of the PIDA indicate that
no criminal or civil actions will be brought
against those who, in good faith, assist in
investigations related to the Act. Protections
against libel and slander for information that is
provided during an investigation are provided
under section 46 of the FIPPA and section 40
of the PIPA, which could include investigations
resulting from whistleblower disclosures.
Fewer protections were found for those
who refuse to participate in wrongdoing and
against obstruction of whistleblower rights.
Legal protections for those who simply refuse to
engage in wrongdoing (as opposed to disclosing
wrongdoing) were only explicitly mentioned
in the FIPPA and the PIPA [s. 30.3; s. 52].
Only in the PIDA (s. 45) were there specific
prohibitions against provisions in contracts
or agreements that prevent disclosures of
wrongdoing (i.e., “gag orders”).
Consistent with best practice principles,
anonymous disclosures are permitted under the
PIDA (s. 14); however, though Transparency
International (2013) recommends that
anonymous disclosers be afforded the same
rights as other disclosers, the PIDA does not
guarantee the same right of notification of
the outcome of investigations to anonymous
disclosers as to non-anonymous disclosers.
Anonymous disclosures were not explicitly
stated in the other legislation reviewed, though
anonymous reporting of all criminal offences
is permitted via tip lines like Crime Stoppers.
Finally, none of the legislation reviewed
included specific reference to legal entitlements
to protection for whistleblowers or their
families whose safety is threatened because of
disclosures of wrongdoing. Though the police
can provide peace bonds for those who pose
a threat to whistleblowers or their families,
no specific protections for whistleblowers are
contained in s. 425.1 of the CCC.
DISCLOSURE PROCEDURE PRINCIPLES
Transparency International (2013)
recommends that procedures for reporting
disclosures in the workplace be visible
and understandable; protect identities of
disclosers unless they waive that protection;
allow for complete, timely, and independent
investigations of disclosures of wrongdoing; and
ensure “transparent, enforceable, and timely”
(pg. 7) responses to complaints about and
engagement in discipline of those who retaliate
against whistleblowers.
Both the PSDPA [s. 10(1)] and PIDA [s.
9(1)] require that chief executives establish
internal procedures to manage whistleblower
disclosures. Section 9(2) of the PIDA outlines
features that must be included in those internal
procedures, including: conducting a risk
assessment of whistleblower reprisals; outlining
WHISTLEBLOWER PROTECTIONS IN BC 21
how disclosures will be received and reviewed
and how quickly actions must be taken;
protecting the confidentiality of information
and identities of disclosers and others involved
in disclosure investigations; limiting the
personal information that is collected during
disclosures and investigations to only what is
necessary, and protecting that information;
referring disclosures to other authorities if
they have jurisdiction over the information
disclosed; abiding by the sections of the Act
related to notifications of decisions about
disclosures and investigations and prescribed
reasons for refusing, stopping, postponing, or
suspending an investigation; investigating other
wrongdoings revealed during investigations;
providing any findings of wrongdoing, reasons
for findings, and recommendations to address
the wrongdoing in a report; and making a
summary of the report available to disclosers
and other individuals that require this
information.
Dissemination of information about the
PSDPA is the responsibility of the President
of the Treasury Board (s. 4). Section 4 of the
PIDA indicates that information about how
to make a disclosure must be made available
to employees by the chief executive of their
ministry, government body, or office. However,
neither law includes explicit direction on
how this information should be made highly
visible or understandable to those who could
make protected disclosures. Both acts require
confidential protections of identities of those
involved in investigations of disclosures of
wrongdoing [PSDPA, s. 11(1)(b); PIDA, s.
9(2)(c)]. The PSDPA’s section 15.1(a) also
requires that no more information may be
collected than is necessary for investigations. As
mentioned above, section 6(b) of the PIDA also
indicates that precautions should be taken to
ensure only reasonable and necessary personal
information is collected, used, or disclosed
while investigating disclosures or complaints of
reprisal.
Some time limits for investigations into
whistleblower disclosures and complaints of
reprisal are included in the laws reviewed
here. For instance, under the PSDPA, the
Commissioner must respond to complaints
about reprisals for disclosures of wrongdoing
with 15 days of receiving them [s. 19.4(1)].
Any complaints made about reprisals must be
made within 60 days of discovery of reprisal
by the complainant [s. 19.1(2)]. The PIDA
requires that when the Ombudsperson makes
recommendations following an investigation of
wrongdoing to a ministry, government body,
or office, it must respond within 30 days by
indicating if and how those recommendations
have been implemented [s. 28(1)]. Further,
though the PIDA does not specify time limits
for responses to disclosures of wrongdoing, it
does indicate that these must be set by chief
executives in their procedures for managing
disclosures [s. 9(2)(b)].
As for features of the laws that are related
to transparency, both the PSDPA and the
PIDA legally require notifications be sent
to the discloser/complainant and relevant
parties about whether an investigation will
be conducted and reasons why actions have
or have not been taken in response to the
disclosure or complaint. Under the PSDPA,
22 WHISTLEBLOWER PROTECTIONS IN BC
if the Commissioner decides to deal with a
complaint, a written notice must be sent to
the complainant and the person or entity who
may take disciplinary action against those
who commit reprisals. If the complaint will
not be dealt with, written notification must be
sent to the complainant with reasons why [ss.
19.4(2-3)]. Upon receiving a report about the
investigation, the Commissioner must decide
whether to dismiss the complaint or forward
it to the Public Service Disclosure Protection
Tribunal, and must send notifications of
decisions to the complainant, their employer,
those accused of reprisal, anyone with authority
to discipline those guilty of reprisal, and
designated parties involved in the investigation
of the complaint (s. 20.6). Section 21(2)
requires the Tribunal to create policies regarding
submission of notifications of decisions they
render to those who should be notified.
As for the PIDA, the Ombudsperson must
notify whistleblowers and designated officers
in the relevant ministries, government bodies,
and offices about whether an investigation will
or will not occur and why (s. 21) and must
notify these individuals of any postponement
or suspension of investigation (s. 23) or referral
of matters to another designated officer or the
Auditor General (s. 24). Upon conclusion of
the investigation, a report must be made by the
Ombudsperson to the chief executive of the
ministry, government body, or office to which
the investigation pertains. This report must
include any findings of wrongdoing, reasons to
support any findings, and any recommendations
deemed appropriate by the Ombudsperson.
However, only a summary of this report must
be provided to the discloser and any alleged
perpetrator of the wrongdoing (s. 27).
Transparency International (2013) counsels
that when it is not feasible for disclosures to
be reported in the workplace, such reports
should be made to external regulators and
authorities. Under the PSDPA and the PIDA,
there are multiple people to whom a disclosure
of wrongdoing can be made to ensure that
they are not made to those implicated in the
disclosure. For instance, federal public sector
employees may make disclosures of wrongdoing
to either a chief executive or designate, a
supervisor, or the Public Integrity Service
Commissioner (ss. 12-14), whereas provincial
public sector workers may disclose to a chief
executive or designate, the Ombudsperson, or
the Auditor General (ss. 12-13). Complaints
of reprisals under the PSDPA are made to
the Public Sector Integrity Commissioner [s.
19.1(1)], while under PIDA they are typically
made to the Ombudsperson but can also be
made to the Auditor General [ss. 33(1-2)].
Disclosures of wrongdoing under the FIPPA
(s. 30.3) and the PIPA (s. 54) can be made to
the Information and Privacy Commissioner,
and additionally under the FIPPA, disclosures
can be made to the minister in charge of the
Act. These individuals and offices are typically
considered at arm’s length from disclosers
and accused wrongdoers and having multiple
individuals to whom disclosures can be made
prevents whistleblowers from being forced
to disclose to those who they are accusing
of wrongdoing. However, external regulators
or authorities are not included in any of the
legislation reviewed as possible recipients of
WHISTLEBLOWER PROTECTIONS IN BC 23
disclosures.
Transparency International (2013) also
recommends that laws allow for protected
disclosures to be made to external parties like
the media in cases where the wrongdoing is
a case “of urgent or grave public or personal
danger, or of persistently unaddressed
wrongdoing that could affect the public interest”
(pg. 7). Disclosures to external parties are
indeed permitted under federal and provincial
law, but under limited circumstances. The
PSDPA protects disclosures to the public if it is
necessary to reveal the wrongdoing after being
considered via internal disclosure processes,
and if the wrongdoing disclosed is a serious
violation of federal or provincial law or it poses
an imminent risk to the public or environment
(s. 16). The PIDA similarly permits public
disclosures for serious and imminent risks to
individuals and the environment. However,
public disclosures are only protected if approval
to disclose publicly is granted by a designated
protection official after he or she has been
consulted on the matter [ss. 16(1)(a-b)].
However, it is possible for some disclosures
to the public to be made by the Office of the
Ombudsperson [s. 5(3)]. The CCC does not
protect external disclosures of wrongdoing,
such as to the media, and no explicit provisions
allowing for reporting to external parties are
covered under either the FIPPA or the PIPA.
Next, it is recommended that “a wide
range of accessible disclosure channels and
tools be made available to employers and
workers” (Transparency International, 2013,
pg. 7) who have disclosed or intend to disclose
wrongdoing, such as access to advice lines,
hotlines, and compliance and Ombudsperson
offices. BC’s PIDA affords permissions for
intended whistleblowers to seek advice
from the employee’s union or professional
association, a lawyer, a supervisor, a designated
officer in their employment sector, or the
Ombudsperson [ss. 11(1)(a-e)]. The PSDPA
permits the Commissioner to afford access
to legal advice to any public servant who is
considering making a disclosure of wrongdoing
related to the act, has already made a
disclosure, or who is considering making a
complaint of reprisals made against them.
Legal advice is also available to any person who
may provide information to the Commissioner
about wrongdoing related to the act, who is
involved in an investigation related to the act
by the Commissioner, or anyone accused of
making reprisals related to disclosures and
investigations related to this act [s. 25.1(1)].
In sum, access to legal and professional advice
related to disclosures is permitted under these
acts. However, other resources such as access to
advice lines, hotlines or online portals are not
explicitly mentioned as possible resources for
whistleblowers in the legislation reviewed here.
Finally, special procedures and safeguards
are recommended for laws that pertain to
disclosures containing information related
to national security or official secrets
(Transparency International, 2013). Certain
groups are excluded from the definition
of “public servant” in the PSDPA, such as
members of the Canadian Forces and the
Canadian Security Intelligence Service (s. 2).
A likely reason for their exclusion under section
2 is that these individuals are more likely to
24 WHISTLEBLOWER PROTECTIONS IN BC
make disclosures that contain information
about sensitive governmental issues. However,
these groups are mandated to have their own
disclosure procedures like those in the PSDPA
(s. 52). Similarly, under section 5 of the PIDA,
certain privileged information (such as anything
restricted under BC or federal law) is not
authorized to be released from disclosures to
or in a report by the Ombudsperson, or in a
disclosure that is made to the public.
RELIEF & PARTICIPATION PRINCIPLES
Recommendations in this category include
affording whistleblowers “a full range of
remedies [that] must cover all direct, indirect,
and future consequences of any reprisals”
(Transparency International, 2013, pg. 8),
such as reimbursement of attorney fees or lost
wages, compensation for pain and suffering,
and interim financial relief to offset the costs
of lengthy delays in investigations of reprisal.
They also include entrenching the right to a
fair and participatory hearing of the violation
of whistleblowers’ rights, participation of
whistleblowers in subsequent investigations or
inquiries, and also offering rewards for making
disclosures, such as monetary rewards or public
recognition for disclosures (Transparency
International, 2013).
Under the PSDPA, the Public Sector
Disclosure Protection Tribunal is permitted
to order remedies in favour of complainants
if it is determined that they suffered reprisals
for disclosing wrongdoing [s. 20.4(1)]. These
remedies include permission to return to
duties or employment, lifting of disciplinary
actions, and compensation for lost wages or
financial losses directly occurring from reprisals.
Complainants can receive up to $10 000 for
pain and suffering resulting from reprisals [s.
21.7(1)]. Though the PIDA is not explicit in
the remedies for those victimized by reprisals,
several sections of the act indicate that
remedies from other sources are not limited
by it. The FIPPA and the PIPA also do not
identify specific remedies for whistleblowers
who disclose wrongdoing related to their
respective acts. None of the laws examined
here articulated specific rights to interim relief
for whistleblowers.
As to being entitled to a fair hearing before
an impartial forum, multiple features of fair and
transparent investigations have already been
described, such as having specific procedures
to disclose wrongdoing and rights to be
notified about the outcomes of investigations
of disclosures and complaints of reprisals.
Section 46 of the PIDA indicates that “nothing
in [the] Act limits or affects that remedy, right
of appeal, objection or procedure” in other
enactments or rules of law. However, the right
to a “genuine day in court” (Transparency
International, 2013, pg. 9) was not addressed
specifically in the legislation reviewed, as
direct references to physical participation in
a hearing before an impartial forum or rights
of a whistleblower to call and cross-examine
witnesses were not obvious here. Similarly,
entrenched rights to participate in subsequent
investigations or inquiries were not explicitly
mentioned in the legislation reviewed. Finally,
no legal rights or entitlements to rewards for
disclosing wrongdoing were directly mentioned
in any of the laws examined here.
WHISTLEBLOWER PROTECTIONS IN BC 25
LEGISLATIVE STRUCTURE, OPERATION,
AND REVIEW PRINCIPLES
It is recommended that countries
adopt dedicated, stand-alone legislation
to promote whistleblower disclosures and
provide whistleblower protections. Statistics
should also be published and made publicly
available about disclosures and investigations
into whistleblower complaints of reprisal by
those who field and investigate disclosures
and complaints of reprisal. In addition, the
development and review of laws should involve
consultation with multiple stakeholders,
and training should be provided to agencies,
corporations, management, and staff in
whistleblower disclosure procedures. The
final recommendation in this category is that
whistleblower laws and policies should be
clearly posted in the workplace (Transparency
International, 2013).
Both the PSDPA and the PIDA are stand-
alone legislation intended to encourage and
protect disclosures of wrongdoing. In addition,
though the primary purpose of the CCC,
the FIPPA, and the PIPA is not to protect
whistleblowers, all contain sections pertaining
to whistleblower disclosures and protections.
As for public data, though the RCMP reports
data to the public about criminal offences,
detailed information about offences of reprisal
against whistleblowers is not typically reported
in official statistics available to the public.
For the other legislation, annual reports must
be compiled and submitted about activities
of government offices related to their duties
under their respective acts. Under sections
38(1-2) of the PSDPA, the Commissioner
must prepare an annual report about his or her
work related to this act, including the number
of general inquiries about the act, disclosures
received, complaints of reprisals received,
investigations, disclosures and complaints that
were acted upon, recommendations made,
applications to the Tribunal, settlements
reached, and applications to the Tribunal. The
Commissioner must also identify any systemic
problems that lead to wrongdoing and make
recommendations to remedy these issues.
Sections 38(1-2) of the PIDA indicate that
the chief executive of a ministry, government
body, or office (or their delegate) must
prepare an annual report about all disclosures
of wrongdoing during the last year. These
reports must include how many disclosures
were received, referred, and acted or not acted
upon. They also must indicate how many
investigations into disclosures of wrongdoing
were made, and in cases where wrongdoing was
found to have occurred, a description of the
wrongdoing, recommendations related to the
wrongdoing, and any corrective actions taken.
This report must be made publicly available
on a government website (s. 39). Similar
information about investigations conducted
by the Ombudsperson must be contained
in an annual report to the BC Legislative
Assembly, as well as information about any
recommendations made by the Ombudsperson
to correct issues identified during investigations,
if those recommendations have been
implemented, and about any systemic problems
that may facilitate wrongdoing that should
be remedied (s. 40). For the Information and
Privacy Commissioner, such reports contain
26 WHISTLEBLOWER PROTECTIONS IN BC
information about his or her work related
to FIPPA and PIPA, which may include
information about whistleblower disclosures or
reprisals. Annual reports must be made to the
Speaker of the BC Legislative Assembly by the
Information and Privacy Commissioner about
the work of their office under the FIPPA (s.
51(1)(a-b) and PIPA [s.44(1)].
As for the involvement of multiple actors in
the design and review of whistleblower laws,
regulations, and procedures, the PSDPA, the
PIDA, the FIPPA, and the PIPA all include
sections requiring review of their legislation
within 5-6 years. The PSDPA requires that
the President of the Treasury Board conduct
an independent review of the Act (s. 54). The
PIDA requires review by special committee of
the BC Legislative Assembly to be conducted
within 1 year of the striking of the committee
[s. 50(1)]. Similar provisions exist in the FIPPA
[s. 80(1)] and the PIPA (s. 44). Though it is
possible that stakeholders may be consulted,
no specific provisions are included in the
reviewed legislation for consulting with multiple
stakeholders in either the development or
the review of whistleblowing procedures,
regulations, or laws.
Unfortunately, none of the laws reviewed
here included comprehensive training in
whistleblower procedures, regulations, or laws
for agencies, corporations, management, or
staff. Some of the legislation reviewed here
designates an official who is responsible for
making information about the acts available,
and it is possible that chief executives could
include training as part of the procedures
they must develop in managing disclosures.
However, there is little guidance in the
legislation reviewed about training. As
mentioned previously, direct statements about
how to make those laws highly visible to
potential whistleblowers also do not appear to
be made in the text of the legislation reviewed.
ENFORCEMENT PRINCIPLES
Finally, Transparency International (2013)
makes three recommendations about the
enforcement of whistleblower protection
laws. First, an independent agency should
investigate claims of reprisal and problematic
vetting of disclosures and may make binding
recommendations and forward information to
authorities who can enforce the law. Public
advice and education efforts should also be
made by this agency. Second, there should be
punishments for retaliation and interference
with whistleblowers disclosures and
investigations. Third, regulatory agencies should
engage in “follow-up, correction actions, and/or
policy reforms” when bona fide whistleblower
disclosures and complaints of reprisal are made
(Transparency International, 2013, pg. 11).
As stated previously, though independent
investigations are conducted, these tend
not to be done by agencies external to the
organizations covered under the acts reviewed
here. For example, under section 21.5(1) of
the PSDPA, the Commissioner can apply
to the Public Servants Disclosure Protection
Tribunal to decide if a reprisal has been made
against a complainant who has disclosed a
wrongdoing. Section 21.5(5) allows the Public
Servants Disclosure Protection Tribunal to order
penalties against those found to have engaged
WHISTLEBLOWER PROTECTIONS IN BC 27
in reprisals against a complainant. The Tribunal
may take any necessary measures to achieve
disciplinary actions, including the termination
or revocation of employment of perpetrators
of reprisals [s. 21.8(1)]. In the PIDA,
investigations of complaints about reprisals
are made to the Ombudsperson or Auditor
General [s. 33(1-2)]; for both the FIPPA
and the PIPA, complaints of reprisal against
whistleblowers are made to and investigated by
the Information and Privacy Commissioner. In
all the above acts, there are designated persons
who are permitted to make recommendations
for change in various organizational sectors
after investigation of whistleblower disclosures
and complaints, and all are permitted to make
referrals to authorities who are tasked with the
enforcement of these Acts.
Numerous punishments exist for retaliation
against whistleblowers. For example, under the
CCC, offences in s. 425.1 are hybrid offences,
with a maximum penalty for an indictable
offence of five years of imprisonment. Acts in
contravention of the PSDPA (against ss. 19, and
40-42.2) are also hybrid offences, whereby the
maximum penalties for indictable offences are
a $10 000 fine and two years of imprisonment
(s. 42.3). The PIDA sets maximum penalties
for violations of the Act at $25 000 for a first
offence and $100 000 for any subsequent
offences [s. 41(4)(a-b)]. For the FIPPA, acts in
contravention of section 30.3 (whistleblower
protections) can result in a maximum penalty of
a fine between $2000 and $500 000, depending
on whether the offender is a service provider
or not, or is an individual or corporation
[s. 74.1(5)]. Section 56(2) of the PIPA sets
maximum fines for offences under the Act at
no more than $10 000 (for individuals) and no
more than $100 000 (for organizations).
Lastly, both the federal Public Service
Integrity Commissioner and the Public
Sector Disclosure Tribunal, as well as the
provincial Ombudsperson, chief executives,
and Information and Privacy Commissioner
are permitted to make recommendations
for corrective actions and policy reforms. In
the PIDA, the Ombudsperson may request
notification from the relevant ministry,
government body, or office, as to whether the
recommendations have been implemented
within a set time period [s. 28(1)].
28 WHISTLEBLOWER PROTECTIONS IN BC
transparency international (2013) states that
all workers should have the ability to report
wrongdoing and be protected from retaliation,
and that mechanisms should exist to promote
reform of whistleblower laws and prevent future
harm. In many ways, legislation relevant to
potential whistleblowers in BC is consistent
with those ideals. In the laws reviewed here,
disclosures of multiple types of wrongdoing
are protected, with protections afforded
for disclosures made by current employees,
former employees, and external contractors,
depending on the legislation. Broad protections
for whistleblowers under the law are important
to ensure that the greatest number of people
will have those rights (Lewis, 2008). Some
protections against legal liability and reprisal are
even offered under some legislation to parties
other than whistleblowers, such as those who
cooperate with investigations of disclosures
or complaints of reprisal. If fear of reprisal
decreases the likelihood that a whistleblower
will make a disclosure (Smaili & Arroyo,
2017), fear of reprisals could similarly deter
cooperation by others during investigations.
Therefore, legal protections should improve
cooperation with investigations by all parties
involved who have those protections. Multiple
acts reviewed here included the “reasonable
belief” threshold standard in determining who
should receive whistleblower protections,
ensuing that those who make good faith
disclosures are protected even if it is revealed
that their perception of an act of wrongdoing
is inaccurate. Acts of wrongdoing can occur in
complex social situations, so in the absence
of legal protections for good faith disclosures,
disclosures of serious wrongdoing may not be
made by individuals who doubt the strength
of their memory for witnessing wrongdoing or
are uncertain in their interpretation of others’
behaviour related to that wrongdoing.
DISCUSSION
WHISTLEBLOWER PROTECTIONS IN BC 29
It is clear from the legislation reviewed
here that reprisals against those who
disclose wrongdoing in BC are unacceptable
behaviours. All law sources reviewed here
included prohibitions against whistleblowers
reprisals, and mechanisms exist in the law to
punish those who make false disclosures of
wrongdoing. The existence of prohibitions and
punishments for reprisal against whistleblowers
could deter potential acts of reprisal and
provide justice to those who have suffered
reprisal. They also send a message that we
value and therefore must protect those who
put themselves at risk by providing information
that could halt wrongdoing. Under the
PIDA, whistleblowers do not have to prove,
once a valid disclosure has been made, that
sanctions against them and the disclosures
they made were related. This provision is
important because the whistleblower may
have faced serious reprisals and may have
had to shoulder multiple burdens during
disclosure investigations, such as financial
strain and psychological stress. In addition,
multiple acts reviewed here entrench the
right to confidential protection of identities
and personal information of those involved
in investigation of whistleblower disclosures
and complaints. Guaranteeing protections for
personal safety and reputation can be critical to
convince people to cooperate in investigations
of wrongdoing; indeed, such a practice is a
cornerstone of the management of confidential
informants in the criminal justice system.
Another best practice principle is that
stand-alone whistleblower legislation
should be created, rather than relying on
individual whistleblower protections spread
across different laws and statutes. In BC,
such legislation exists to protect federal
and provincial public sector government
employees. Further, some BC provincial acts
intended for other purposes, like the FIPPA
and the PIPA, protect against whistleblower
reprisals. Though stand-alone legislation is
preferred over having individual provisions
for whistleblower protections scattered across
different pieces of legislation, the inclusion
of such provisions in legislation can serve
to highlight specific acts that are considered
wrongdoing that a whistleblower might report
that are highly relevant to that legislation.
Unfortunately, when we are left to interpret
broad categories of wrongdoing that could be
reported by whistleblowers, such as “gross or
systemic mismanagement”, more specific acts
of wrongdoing may be missed or may fail to
be identified as belonging to that category.
Dedicated sections of laws to protections
for whistleblowers can illuminate specific
whistleblower rights and protections.
Both the federal and provincial
whistleblower acts require specific procedures
to be established for managing disclosures
of wrongdoing in each ministry, government
body, and office. This is prudent because when
organizations each have their own individual
policies for handling disclosures and complaints
of reprisal, they are more effective at dealing
with whistleblower issues than if everyone
follows the same provisions in overarching
legislation (Hassink et al., 2007). The PIDA
sets out specific features that must be enshrined
in procedures developed by chief executives
30 WHISTLEBLOWER PROTECTIONS IN BC
to manage whistleblower disclosures. Further,
both the PSDPA and PIDA include guidelines
for how, when, and why investigations may
be refused, postponed, or suspended, and
in many cases require that notifications of
decisions made during and upon conclusion of
investigations of whistleblower disclosures and
reprisal complaints be distributed to relevant
parties. Doing so increases the likelihood
that investigation decisions will be made
transparently and that the whistleblowers
will be kept informed about the process of
investigating their disclosures and complaints.
An especially important feature of both
the PSDPA and PIDA is that during these
investigations, no more personal information
may be used, collected, or disclosed than
is necessary to conduct the investigations,
protecting the privacy of individuals involved.
All of those in charge of investigations
have the power to make recommendations
or orders related to whistleblower provisions,
increasing the likelihood that reform of issues
which facilitate wrongdoing will occur. These
individuals can also refer offences prohibiting
reprisals against whistleblowers to relevant
law enforcement authorities to increase
the likelihood that wrongdoers will be held
accountable for their actions. Most legislation
reviewed here included direction for how
disclosures related to issues of national security
or official secrets must be managed, while all
the acts reviewed here permitted for some data
about whistleblower disclosures and complaints
of reprisal to be reported to government
bodies and made available to the public. These
provisions attempt to balance the protection of
information that could jeopardize the security
of the public with the distribution of certain
information to which the public has rights.
Further, provisions for the enforcement of issues
related to complaints of retaliation against
whistleblowers, including offences and penalties
for those offences, are included in all legislation
reviewed here. Again, these provisions send
the message that punishing whistleblowers
for reporting wrongdoing will be met with
punishment. Finally, some mechanisms for
follow-up, corrective action, and policy reform
are afforded to those responsible for making
reports about reprisal investigations. Thus, in
many ways, legislation aimed at or that contains
provisions for the protection of whistleblowers
in BC are consistent with best practice
principles. They contain multiple provisions
and protections which promote accountability
and transparency related to decisions reached
after investigation of whistleblower disclosures
and complaints of reprisals, as well as some
that preserve rights of access to information and
protection of privacy for those involved in those
investigations.
Unfortunately, some best practice principles
for whistleblower policies, regulations, and laws
were not met in the laws reviewed here. First,
protections are not provided for all types of
whistleblowers recommended by Transparency
International (2013). Notably, most protections
for whistleblowers in the laws reviewed here
are for government workers in the public
sector. When BC’s PIDA was introduced by
the Ministry of the Attorney General (2018), it
was indicated that the legislation may later be
extended to offer protections to whistleblowers
WHISTLEBLOWER PROTECTIONS IN BC 31
in the private sector, but it remains to be
seen if this will occur. Unfortunately, current
protections for whistleblowers in the PIPA
are insufficient to compensate for the lack of
private sector whistleblower rights in the PIDA.
Thus, unless whistleblowers in the private
sector disclose wrongdoing such as an employer
assaulting an employee or an organization
that is failing to store personal information
securely, many who disclose wrongdoing in
the private sector are left vulnerable to reprisal.
In addition, fewer types of whistleblowers are
protected under federal and BC laws than is
recommended under best practices guidelines.
That is, while employees and external
contractors are covered under the PSDPA and
PIDA, individuals like volunteers or interns
are not explicitly mentioned as those who
could make protected disclosures or against
whom reprisals might be prohibited. These
omissions are problematic because volunteers
and interns could have insider knowledge about
wrongdoing, just as an employee or contractor
would. These are also individuals who arguably
are more vulnerable because they are less likely
to have knowledge about the inner workings
of their organization and their rights than
employees.
Similarly, not all types of disclosures of
wrongdoing recommended by Transparency
International (2013) may be protected.
Though the PSDPA and PIDA protect major
disclosures of wrongdoing such as of criminal
and statutory offences, dangers to individuals
or the environment, and misuse of public
funds, misconduct such as corruption, conflicts
of interest, and abuse of authority were not
specifically mentioned in the laws reviewed
here. Though some of these acts of wrongdoing
may belong to the breach of code of conduct
category in the PSDPA, or fall under a broad
category of wrongdoing like “gross or systemic
mismanagement” in the PIDA, some acts may
not be interpreted as examples of wrongdoing
within broad categories and therefore some
disclosures of wrongdoing still may not be
protected.
Within the category of protection
principles, legislation reviewed here did not
meet all best practice recommendations.
Though multiple types of retaliation were
prohibited in the legislation reviewed, such as
disciplinary action, demotion, termination, and
anything adversely affecting working conditions
or employment in the PSDPA, these are more
overt forms of reprisal. Some covert or atypical
forms of reprisal were not explicitly mentioned.
Though an action that “adversely affects the
employment or working conditions” (PSDPA,
s. 42.1.1) of a whistleblower could serve as a
broad category that captures multiple forms of
reprisal, leaving this up to interpretation could
result in less obvious forms of retaliation – such
as ostracizing or being deemed redundant as an
employee to permit termination of position -
being missed as forms of retaliation.
Protections for whistleblowers that were
included less often in the laws reviewed here
are the nullification of gag orders which prevent
employees from disclosing wrongdoing, and
legal permissions for anonymous reporting.
These were only clearly outlined in the
PIDA. However, contrary to Transparency
International (2013) principles, anonymous
32 WHISTLEBLOWER PROTECTIONS IN BC
disclosers do not have the same rights as
those who do not disclose anonymously to be
notified of investigations into whistleblower
disclosures under the PIDA. Further, though
the need for these protections is arguably rare
and could be requested from police, none of
the legislation explicitly enshrined protections
for whistleblowers and their families whose
safety is in danger. Affording these rights to
individuals could prevent organizations from
enabling themselves to engage in wrongdoing
by prohibiting employees from speaking about
it, may compel disclosures of wrongdoing
for those who especially fear reprisal if
their identify was revealed, and ensure that
disclosures of wrongdoing are not held back
due to fear of reprisal against loved ones.
A few best practice principles related
to disclosure procedures were not clearly
featured in the legislation reviewed here.
For example, no explicit provisions were
included in either the PSDPA or PIDA for
how to make whistleblower procedures
highly visible and understandable. Prescribed
time limits for responding to disclosures or
complaints, or conducting investigations
(e.g., 15 days for responses to disclosures
under the PSDPA) were rare in the legislation
reviewed. Investigations therefore could be
lengthy, to the detriment of whistleblowers
who have faced reprisals such as termination
of employment. Time limits imposed on
whistleblowers for reporting reprisals under
the PSDPA (60 days from discovery of reprisal)
are considered by some to be prohibitive to
whistleblowers because many of them are not
aware of their disclosure rights within that
time frame (Devine, 2016). As a result, the
GAP recommends that time limits on reports
of reprisal be increased to within 6-12 months
of discovery (Devine, 2016). Further, though
the legislation reviewed provided numerous
instances where whistleblowers and designated
parties must be notified of investigations of
complaints and reasons for those decisions, the
PIDA only affords whistleblowers and those
accused of wrongdoing the right to a summary
of the investigation report, not the full report.
This restriction in access to information is
less transparent than providing the full report
to whistleblowers and accused wrongdoers,
though transparency must be balanced against
rights to protection of personal information.
Though the legislation reviewed includes
provisions for disclosure and reprisal complaint
investigations by independent organization
members or offices, external organizations were
not tapped to deal with whistleblower reports.
Though external reporting via public disclosures
are permitted in some serious and timely cases
under the PSDPA and the PIDA, procedures
in the latter for reporting to the public require
the approval of a protection officer. Thus,
the ability to make a protected report to the
public may be contingent on the decision
of one individual (unless a disclosure can be
made via the Office of the BC Ombudsperson).
Beyond considering the definitions of serious
wrongdoing provided in legislation, it is unclear
from the legislation how a protection officer
might make a valid determination of when
a public disclosure of wrongdoing should be
permitted. Further, though some rights are
afforded to actual or intended whistleblowers
WHISTLEBLOWER PROTECTIONS IN BC 33
to seek advice about disclosing wrongdoing,
these resources are largely relegated to
seeking legal or professional advice. Legal
mandates to provide resources like advice
lines, hotlines, or online employee portals to
seek advice on disclosures were not mentioned
in the laws reviewed. Thus, the ability to
report wrongdoing externally and advice
available about whistleblower disclosures and
complaints of reprisal is more restricted than is
recommended by Transparency International
(2013) for BC whistleblowers, which in some
cases could result in investigations being less
objective or informed. The more resources and
advice available to potential whistleblowers,
the better the decisions that they can make for
themselves in deciding whether to disclosure
wrongdoing.
The category of principles that was reflected
the least in the laws reviewed here was the
relief and participation category. For example,
interim financial relief for whistleblowers
who are subject to lengthy investigations of
complaints of reprisal was not mentioned in
the laws reviewed here. Neither were rights
to participate in subsequent investigations
or rewards for providing disclosures of
wrongdoing, such as monetary awards or public
recognition. Providing such incentives could
motivate disclosures of wrongdoing, especially
in cases where whistleblowers are reluctant to
report.
As for best practice principles in legislative
structure, operation, and review, the most
notable absence from the legislation reviewed
here were provisions for comprehensive
training in whistleblower laws and
procedures for management and staff in
public sector agencies and publicly traded
companies. Given the potential complexities
of whistleblower disclosure and reprisal
investigations, as well as the harm that
can result from mismanagement of these
investigations, it is critical that at the very least,
procedures created by chief executives include
proper training of themselves, management,
staff to ensure that good laws and procedures
are followed accurately and faithfully. Further,
consultation with all relevant stakeholders in
the development and revision of whistleblower
laws and policies was not articulated specifically
in the laws reviewed here. With specific
reference to the development of the PIDA in
BC, there have been some concerns raised
about whether all relevant stakeholders were
consulted in the development of the law. For
example, the BC chapter of the Freedom of
Information and Privacy Association was not
extensively consulted on this matter.
Finally, though several best practice
principles are contained in laws relevant to
whistleblowers in BC, this does not guarantee
fair outcomes for whistleblowers. The province
of BC must take care under the PIDA not to fall
prey to the same issues that have arisen under
the PSDPA related to investigations of reprisals
against whistleblowers. The Public Sector
Integrity Commissioner and the Public Interest
Disclosure Protection Tribunal have been
criticized for failing to refer cases of reprisal
and recommend discipline against wrongdoers.
When Christiane Ouimet was the Public Sector
Integrity Commissioner, out of 200 complaints
filed, zero findings of wrongdoing or reprisal
34 WHISTLEBLOWER PROTECTIONS IN BC
were reached. In addition, over a seven-year
period studied, out of 140 reprisal cases that
were filed, only six of those cases were referred
to the tribunal (Keith et al., 2016). Out of 306
individuals who have made complaints of
reprisal to the federal Integrity Commissioner
since 2007, only 14 have settled through
conciliation (Johnson, 2018). It is critical that
investigations into complaints of reprisals
against whistleblowers result in fairer outcomes
for whistleblowers who have faced reprisals and
in proper disciplinary action for perpetrators of
reprisals.
With new legislation comes the hope that
new rights and protections will be afforded to
those who need them. In many cases in BC,
this will likely be true. However, as previously
mentioned, even with the introduction of
BC’s PIDA, protected disclosures may still
not be broad enough, such as for disclosures
of misconduct related to interference related
to access to information via FOI requests.
As mentioned earlier in this paper, the triple
delete scandal stemmed from the destruction
of information that was the subject of an FOI
request. In that case, charges were laid, but not
directly related to the act of interference with
the FOI request. Rather, George Gretes plead
guilty to willfully misleading investigations into
the incident. Under the FIPPA, interference
with FOI requests is not an offence in
contravention of the act, and when examining
the disclosures under the PSDPA, the PIDA,
and the FIPPA, protected disclosures are
provided for offences against BC or federal
laws. Thus, disclosures about interference with
FOI requests may not be protected.
It is possible that the wrongdoing category
of “gross or systemic mismanagement” [PIDA,
s.7.1(d)] could capture interference with FOI
requests and therefore such misconduct could
comprise a protected disclosure. However,
this category is not specifically defined in
the PIDA. A similar category of wrongdoing
(gross mismanagement in the public sector)
exists in section 8(c) of the PSDPA. Though
that concept is also undefined in the PSDPA,
the Government of Canada (2018) suggests
several things that may be considered when
determining if gross mismanagement has
occurred in the workplace. One consideration
that can be made about a potential act of
wrongdoing is its “degree of departure from
standards, policies, or accepted practices”
(Government of Canada, 2018). During Gretes’
sentencing, it was noted by the judge that the
triple deleting of emails was not considered to
be an improper or prohibited behaviour at the
time it was occurring (“Former BC government
worker”, 2016). However, the practice was
clearly in violation of a duty to provide
information that is the subject of an FOI
request. Thus, in a culture where interference
with access to information is commonplace,
some misconduct may not obviously fall
under this category. As such, BC’s Freedom of
Information and Privacy Association maintains
that for whistleblower disclosures about
interference with FOI requests to be protected
under the PIDA, amendments must be made
to the FIPPA to include an offence related
to “alteration, concealment, or destruction
of records with the intention of denying or
interfering with access rights” (BC Government
WHISTLEBLOWER PROTECTIONS IN BC 35
Introduces Public Interest Disclosure Act, 2018,
pg. 2). Notably, under the PIPA, willful disposal
of personal information to interfere with access
to requests for personal information is an
offence [s. 56.1(b)]. Therefore, some private
sector whistleblowers may be better protected
against reprisals for disclosures of interference
with access to information requests than public
sector workers.
the new public interest disclosure act in bc
is a positive step toward ensuring that those
who report wrongdoing in BC are protected
under the law. Though this and other laws
relevant to whistleblowers in BC contain
many features of best practice principles, other
principles are absent. Broader definitions of
whistleblowers, such as private sector workers,
and broader definitions of protected disclosures,
such as those pertaining to interference with
FOI requests, are needed. In addition, more
provisions are required in the law to protect
the identities of disclosers and afford them
more access to information about outcomes
of investigations. There are still others who do
not appear be protected currently via existing
legislation, such as those employed in the
public sector but who do not work for federal
or provincial governments and who do not
have whistleblower protections within their
own organization, such as some BC municipal
governments. Therefore, we must continue
to develop whistleblower laws and policies
to protect those who provide good faith
disclosures of wrongdoing in the public interest.
It is critical that when new laws and policies are
developed or when existing laws and policies
are revised, best practice principles inform these
developments and revisions to ensure that all
whistleblowers in Canada are protected with
metal and not cardboard shields.
CONCLUSION
36 WHISTLEBLOWER PROTECTIONS IN BC
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WHISTLEBLOWER PROTECTIONS IN BC 39
TABLE 1
SUMMARY OF CONSISTENCY OF LAWS RELEVANT TO BC WHISTLEBLOWERS WITH BEST PRACTICE PRINCIPLES
Best Practice
Principle
CCC PSDPA PIDA FIPPA PIPA
Broad definition
of whistleblowing
Broad definition
of whistleblower
Reasonable belief of
wrongdoing threshold
Relevant to
disclosures
of CCC
violations
Employees
in public and
private sector
N/A
Covers disclosure
of offences
against provincial
and federal
enactments;
misuse of public
funds/assets,
substantial/
specific danger
to life, health, or
safety of person
or environment,
gross
mismanagement,
breach of code
of conduct,
and knowingly
directing or
counselling any
of above.
Covers current
and former
federal public
servants; some
protections
for external
contractors
Yes
Covers disclosure
of offences
against BC
and federal
enactments,
misuse of public
funds/assets,
substantial/
specific danger
to life, health, or
safety of person
or environment,
gross or systemic
mismanagement,
and knowingly
directing or
counselling any
of above.
Covers current
and former
provincial
employees
of ministries,
government
bodies, or
offices; some
protections
for external
contractors
Yes
Relevant to
disclosures
of FIPPA
violations
Covers
anyone
reporting Act
violations
(mostly
public sector
workers)
Yes
Relevant to
disclosures of
PIPA violations
Covers anyone
reporting Act
violations (could
be private and
public sector
workers)
Yes
40 WHISTLEBLOWER PROTECTIONS IN BC
Best Practice
Principle
CCC PSDPA PIDA FIPPA PIPA
Not
mentioned
explicitly
No
Yes
Yes (from libel and slander)
Yes
Protection from
retribution
Covers
discipline,
demotion,
termination,
or threatening
to do above
to prevent
or retaliate
against
disclosure
Covers discipline,
demotion,
termination,
adversely
affecting
employment
or working
conditions, or
threatening to do
above
Covers
discipline,
demotion,
termination,
adversely
affecting
employment
or working
conditions, or
threatening
to do above
against anyone
seeking advice
on making
disclosure,
who has made
disclosure, or
cooperated
with disclosure
investigation
Covers dismissal, suspension,
demotion, discipline, harassment,
disadvantage, or denial of benefits
Preservation of
confidentiality
Burden of proof
on employer
Knowingly false
disclosures not
protected
Waiver of liability
Right to refuse
participation in
wrongdoing
Likely
same as for
disclosures of
other crimes
No
Possible
(public
mischief
charge)
Not
mentioned in
s. 425.1
Not
mentioned in
s. 425.1
Yes
No
Yes
Yes (from criminal and civil
liability)
No
Yes
Burden of
proof not
on discloser
Yes
No
Can be requested
by discloser
No
Yes
Yes
WHISTLEBLOWER PROTECTIONS IN BC 41
Best Practice
Principle
CCC PSDPA PIDA FIPPA PIPA
No
No
N/A (reports made to
Information and Privacy
Commissioner)
Preservation of rights N/A No No NoYes (but limited
rights for
anonymous
disclosers)
Anonymous
disclosures
permitted
Personal and
family protection
Reporting within
workplace
Possible (via
anonymous
tip line)
Police can
protect but
not enshrined
in s. 425.1
N/A (report
made to
police)
No
No
Requires chief
executives to establish
disclosure management
procedures; President
of Treasury Board
responsible for
disseminating
information about
PSDPA;
limits on collection of
personal information;
no info on how to
make disclosure
procedures highly
visible/understandable;
identities of those
participating in
investigations must
be kept confidential;
Commissioner must
respond to reprisal
complaints within
15 days; complaints
of reprisal must be
made within 60 days;
notifications about
status and outcome of
investigations must be
sent to all interested
parties
Yes (but
limited
rights for
anonymous
disclosers)
No
Requires chief
executives to establish
disclosure management
procedures (multiple
features included
in legislation) and
provide information to
employees about how
to make disclosures;
limits on collection of
personal information;
no info on how to
make disclosure
procedures highly
visible/understandable;
identities of those
participating in
investigations must be
kept confidential; chief
executive must set time
limits for investigating
disclosures; ministries,
government bodies, and
offices must respond to
recommendations from
Ombudsperson within
30 days; Ombudsperson
must notify interested
parties about status
and outcome of
investigations;
only summary of
outcomes provided to
whistleblowers and
those of accused of
reprisal
No
No
42 WHISTLEBLOWER PROTECTIONS IN BC
Best Practice
Principle
CCC PSDPA PIDA FIPPA PIPA
Reporting to regulators
and authorities
Disclosure and
advice tools
Reporting to
external parties
Reporting
to police is
outside of
organization
N/A
Does not
protect
external
disclosures to
media
Disclosures can
be made to
Office of Public
Service Integrity
Commissioner
Commissioner
may afford
access to legal
advice to public
servants who
have made or
are considering
making
disclosures of
wrongdoing
or complaints
of reprisal, are
cooperating with
investigations
into disclosures
of wrongdoing,
or who are
accused of
making reprisals;
no access to
advice lines,
hotlines, or
online portals
explicitly
mentioned
Possible if
disclosure is in
public interest,
risk is imminent,
wrongdoing
is serious
violation of law,
and if serious
risk posed to
individuals or
environment
Disclosures made
to Information
and Privacy
Commissioner
or Minister in
charge of act
Not mentioned explicitly
Not mentioned explicitly
Disclosures
made to
Information
and Privacy
Commissioner
Disclosures
can be made
to Office of
Ombudsperson
or Auditor
General
Intended
whistleblowers
may seek advice
from union or
professional
association,
lawyer,
supervisor,
designated
officer in their
employment
sector, or
Ombudsperson;
no access to
advice lines,
hotlines, or
online portals
explicitly
mentioned
Possible if
situation
is urgent,
serious risk to
individuals or
environment,
and if public
disclosure is
approved by
designated
protection
official; can also
be disclosed
via Office of
Ombudsperson
WHISTLEBLOWER PROTECTIONS IN BC 43
Best Practice
Principle
CCC PSDPA PIDA FIPPA PIPA
National security/
official secrets
Full range of remedies
Fair hearing/ genuine
day in court
N/A
N/A
N/A
Certain groups
(e.g., Canadian
Forces) excluded
from definition
of public
servant but
must make own
similar internal
disclosure
procedures
Public Sector
Disclosure
Protection
Tribunal can
order remedies
for retaliation
against
whistleblowers
such as
permission to
return to duties
or employment,
lifting of
disciplinary
actions, and
compensation
for lost wages,
financial
losses directly
occurring from
reprisals, or pain
and suffering; no
rights to interim
relief mentioned
Have rights to notification of
outcomes of investigations, no rights
entrenched to specific “day in court”
or to call and cross-examine witnesses
Not mentioned explicitly
Not mentioned explicitly
Not mentioned explicitly
Certain
privileged
information
may not be
revealed in
a disclosure
to or report
released by the
Office of the
Ombudsperson,
or in a
disclosure made
to the public
Not explicit in
remedies for
reprisals, but
several sections
indicate that
remedies from
other sources
are not limited
by the PIDA; no
rights to interim
relief mentioned
44 WHISTLEBLOWER PROTECTIONS IN BC
Best Practice
Principle
CCC PSDPA PIDA FIPPA PIPA
Whistleblower
participation
Reward systems
Whistleblower
training
Publication
of data
Involvement
of multiple
actors
Dedicated
stand-alone
legislation
N/A
Not
mentioned
explicitly
Not
mentioned
explicitly
S. 425.1
crimes not
typically
reported
publicly
N/A
Not
whistleblower
code, but
contains
protections
Rights to notification of progress
and outcomes of investigations into
disclosures and reprisals afforded to
whistleblowers; rights to meaningful
opportunities to provide input to
subsequent investigations/inquiries
not mentioned explicitly
Not mentioned
explicitly
Not mentioned
explicitly
President of
Treasury Board
must conduct
independent
review; no
specific
requirement for
consultation
with
stakeholders to
revise law
Yes, via official annual report to government which are publicly accessible;
must contain statistics and information about investigations of whistleblower
disclosures and/or reprisals
Special committee of the BC Legislative Assembly must
review; no explicit requirement for consultation with
stakeholders to revise law
Yes
Not mentioned explicitly
Not mentioned
explicitly
Not mentioned
explicitly
Not whistleblower acts, but
contain protections
Not mentioned
explicitly
Not mentioned
explicitly
Not mentioned
explicitly
Not mentioned
explicitly
WHISTLEBLOWER PROTECTIONS IN BC 45
Best Practice
Principle
CCC PSDPA PIDA FIPPA PIPA
Whistleblower
complaints authority
Police
conduct
investigation
into reprisals
Public Sector
Integrity
Commissioner
or Public Sector
Disclosure
Protection
Tribunal can
receive and
investigate
disclosures or
complaints of
reprisal
Office of Information and
Privacy Commission receives
and investigates complaints of
reprisal
Chief executive
or designate,
Ombudsperson,
or Auditor
General receive
and investigate
disclosures or
complaints of
reprisal
Penalties for retaliation
and interference
Follow-up and reforms
Max. penalty
= 5 years
imprisonment
All government agencies can make recommendations for corrective actions and policy reform
Max. penalty
= $25 000 (first
offence) or $100
000 (subsequent
offences)
Max. penalty
= $2000
(individuals)
- $500 000
(corporations)
Max. penalty
= $10 000
(individuals)
= $100 000
(corporations)
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