Be it enacted by the Lieutenant-Governor and
House of Assembly in Legislative Session convened, as follows:
Short title
1. This
Act may be cited as the Public Interest Disclosure
and Whistleblower Protection Act.
Definitions
2. In
this Act
(a) "board" means the Labour Relations Board
appointed under the Labour Relations Act;
(b) "chief executive" means
(i) in relation to a department, the deputy minister
of that department, and
(ii) in relation to a public body, the person
generally responsible for the management or operation of that body;
(c) "citizens' representative" means the
Citizens' Representative appointed under the Citizens' Representative Act;
(d) "commissioner for legislative
standards" means the Commissioner for Legislative Standards appointed
under the House of Assembly Act;
(e) "department" means a department created
under the Executive Council Act and
includes a branch of the executive government of the province;
(f) "disclosure" means a report in
writing of a wrongdoing which has been committed or is about to be committed,
where that disclosure is made in good faith by an employee in accordance with this
Act;
(g) "employee" means an employee or officer
of the public service;
(h) "public body" means
(i) a corporation, the ownership of which or a majority
of the shares of which is vested in the Crown,
(ii) a corporation, commission or body, the majority
of the members of which, or a majority of the members of the board of directors
of which, are appointed by an Act, the Lieutenant-Governor in Council or a minister,
(iii) a school board or school district constituted
or established under the Schools Act,
1997, including the conseil scolaire
francophone, and
(iv) a corporation, commission or other body designated
by regulation as a public body,
but does not include Memorial University of
Newfoundland;
(i) "public service" means a department
or a public body;
(j) "reprisal" means one or more of the following
measures taken against an employee because the employee has, in good faith, sought
advice about making a disclosure, made a disclosure or cooperated in an investigation
under this Act:
(i) a disciplinary measure,
(ii) a demotion,
(iii) termination of employment,
(iv) a measure that adversely affects his or her employment
or working conditions, or
(v) a threat to take any of the measures referred to
in subparagraphs (i) to (iv); and
(k) "wrongdoing" means a wrongdoing referred
to in section 4.
Purpose
3. The
purpose of this Act is to facilitate the disclosure and investigation of
significant and serious matters in or relating to the public service that an
employee believes may be unlawful, dangerous to the public or injurious to the
public interest, and to protect persons who make those disclosures.
Wrongdoings to which
this Act applies
4. (1) This
Act applies to the following wrongdoings in or relating to the public service:
(a) an act or omission constituting an offence under
an Act of the Legislature or the Parliament of Canada, or a regulation made under
an Act;
(b) an act or omission that creates a substantial and
specific danger to the life, health or safety of persons, or to the environment,
other than a danger that is inherent in the performance of the duties or functions
of an employee;
(c) gross mismanagement, including of public funds
or a public asset; and
(d) knowingly directing or counselling a person to
commit a wrongdoing described in paragraph (a), (b) or (c).
(2) This Act applies only in respect of
wrongdoings that occur after the coming into force of this Act.
Discipline for wrongdoing
5. An
employee who commits a wrongdoing is subject to appropriate disciplinary action,
including termination of employment, in addition to and apart from another penalty
provided for by law.
Request for advice
6. (1) An
employee who is considering making a disclosure may request advice from the citizens'
representative.
(2) The citizens' representative may require the request
for advice to be in writing.
Disclosure by employee
7. (1) Where
an employee reasonably believes that he or she has information that could show that
a wrongdoing has been committed or is about to be committed, the employee may make
a disclosure to the citizens' representative.
(2) The identity of an employee making a
disclosure shall be kept confidential to the extent permitted by law and
consistent with the need to conduct a proper investigation.
Content of disclosure
8. (1) A
disclosure made under section 7 shall be in writing
and shall be signed by the person making it.
(2) A disclosure shall include the following information,
if known:
(a) a description of the wrongdoing;
(b) the name of the person alleged to
(i) have committed the wrongdoing, or
(ii) be about to commit the wrongdoing;
(c) the date of the wrongdoing; and
(d) whether the wrongdoing has already been disclosed
and a response received.
Citizens' representative
to facilitate resolution within public service
9. Where
an employee makes a disclosure to the citizens' representative, the citizens' representative
may take the steps he or she considers appropriate to help resolve the matter within
the public service.
Disclosure despite
other Acts
10. An
employee may make a disclosure under this Act, notwithstanding a provision in another
Act or regulation that prohibits or restricts disclosure of the information.
Where disclosure restrictions
continue to apply
11. (1) Notwithstanding
section 10, nothing in this Act authorizes the disclosure
of
(a) information or documents which would disclose the
deliberations of the Executive Council or a committee of the Executive Council;
or
(b) information or documents that are protected by
solicitor-client privilege.
(2) Where a disclosure involves personal information
or confidential information, the employee shall take reasonable precautions to ensure
that no more information is disclosed than is necessary to make the disclosure.
Other obligations
to report not affected
12. Nothing
in this Act relating to the making of a disclosure is to be construed as affecting
an employee's obligation under another Act or regulation to disclose, report or
otherwise give notice of a matter.
Purpose of investigation
13. The
purpose of an investigation by the citizens' representative into a disclosure of
wrongdoing is to bring the wrongdoing to the attention of the chief executive
of the appropriate department or public body and to recommend the corrective measures
that should be taken, when appropriate.
Investigation by citizens'
representative
14. (1) The
citizens' representative is responsible for investigating disclosures that he or
she receives under this Act.
(2) An investigation shall be conducted as informally
and expeditiously as possible.
(3) The citizens' representative shall ensure that
the right to procedural fairness and natural justice of all persons involved in
an investigation is respected, including persons making disclosures, witnesses and
persons alleged to be responsible for wrongdoings.
(4) Notwithstanding another provision of this Act,
the citizens' representative shall not investigate a decision, recommendation,
act or omission made or done by an individual in the course of acting as a solicitor
or Crown prosecutor in the public service.
When investigation
not required
15. (1) The
citizens' representative is not required to investigate a disclosure and the citizens'
representative may cease an investigation if he or she is of the opinion that
(a) the subject matter of the disclosure would more
appropriately be dealt with, initially or completely, according to a procedure provided
for under another Act;
(b) the disclosure is frivolous or vexatious, or has
not been made in good faith or does not deal with a sufficiently serious subject
matter;
(c) so much time has elapsed between the date when
the subject matter of the disclosure arose and the date when the disclosure was
made that investigating it would not serve a useful purpose;
(d) the disclosure does not provide adequate particulars
about the wrongdoing as required by section 8; or
(e) there is another valid reason for not investigating
the disclosure.
(2) Where the citizens' representative believes that
a disclosure made to the citizens' representative would be dealt with more appropriately
by
(a) the auditor general, the citizens'
representative may refer the matter to the auditor general to be dealt with in accordance
with the Auditor General Act; or
(b) the commissioner for legislative standards,
the citizens' representative may refer the matter to the commissioner for legislative
standards to be dealt with in accordance with this Act.
(3) Where a matter is referred to the auditor
general under subsection (2), the reprisal protections set out in this Act apply
to the employee or former employee who made the disclosure to the citizens' representative.
(4) Where a matter is referred to the commissioner
for legislative standards under subsection (2), the commissioner for
legislative standards has and shall exercise the powers and duties of the
citizens representative under this Act.
(5) Where the citizens' representative does not
investigate a disclosure, ceases an investigation or refers a disclosure to the
auditor general or the commissioner for legislative standards under this
section, the citizens' representative shall report on the matter to the
employee who made the disclosure in the manner and at the time the citizens' representative
considers appropriate.
Conducting an investigation
16. (1) The
citizens' representative and persons employed under the citizens' representative
have the powers and protections provided for in the Citizens' Representative Act when conducting an investigation of a disclosure
under this Act.
(2) Sections 13, 14, 25 to 36 and 40 to 42 of the Citizens' Representative Act apply to the
conduct of an investigation, with the necessary changes.
Investigating other
wrongdoings
17. Where,
during an investigation, the citizens' representative has reason to believe that
another wrongdoing has been committed, the citizens' representative may investigate
that wrongdoing in accordance with this Act.
Citizens' representative's
report re investigation
18. (1) Upon
completing an investigation, the citizens' representative shall prepare a report
containing his or her findings and any recommendations about the disclosure and
the wrongdoing.
(2) The citizens' representative shall give a copy
of the report to the chief executive of the appropriate department or public
body.
(3) Notwithstanding subsection (2), where the matter
being investigated involves the chief executive, the citizens' representative shall give a copy of the report,
(a) in the case of a department, to the minister responsible;
or
(b) in the case of a public body, to the board of directors
and the minister responsible.
(4) The citizens' representative shall report on
the result of his or her investigation to the employee whose disclosure
initiated the investigation in the manner and at the time the citizens' representative
considers appropriate.
Notification by department
or public body
19. (1) When
making recommendations, the citizens' representative may request the appropriate
department or public body to notify him or her, within a specified time, of the
steps it has taken or proposes to take to give effect to the recommendations.
(2) Where the citizens' representative believes that
the department or public body has not appropriately followed up on his or her recommendations,
or did not cooperate in the citizens' representative's investigation under this
Act, the citizens' representative may make a report on the matter
(a) in the case of a department, to the minister responsible;
or
(b) in the case of a public body, to the board of directors
and the minister responsible.
Annual report
20. (1) The
citizens' representative shall make an annual report to the House of Assembly on
the exercise and performance of his or her functions and duties under this Act,
setting out
(a) the number of inquiries relating to this Act;
(b) the number of disclosures received and the
number acted on and not acted on;
(c) the number of investigations commenced under this
Act;
(d) the number of recommendations the citizens' representative
has made and whether the department or public body has complied with the recommendations;
(e) whether, in the opinion of the citizens' representative,
there are any systemic problems that give rise to wrongdoings; and
(f) the recommendations for improvement that the citizens'
representative considers appropriate.
(2) The report shall be given to the Speaker, who shall
table a copy of it in the House of Assembly within 15 days after receiving it if
the Assembly is sitting or, if it is not, the Speaker
shall give a copy of the report to the Clerk of the House of Assembly and after
15 days after receipt of that report by the Clerk it shall be considered to
have been tabled in the House.
(3) Where it is in the public interest to do so, the
citizens' representative may publish a special report relating to a matter within
the scope of the citizens' representative's functions and duties under this Act,
including a report referring to and commenting on a particular matter investigated
by the citizens' representative.
Protection of employee
from reprisal
21. (1) A
person shall not take a reprisal against an employee or direct that one be taken
against an employee because the employee has, in good faith,
(a) sought advice about making a disclosure from the
citizens' representative;
(b) made a disclosure; or
(c) cooperated in an investigation under this Act.
(2) A person who takes a reprisal against an
employee or directs that one be taken contrary to subsection (1) is subject to
appropriate disciplinary action, including termination of employment, in
addition to and apart from another penalty provided by law.
Complaint to Labour
Relations Board
22. (1) An
employee or former employee who alleges that a reprisal has been taken against him
or her may file a written complaint with the board.
(2) Where
the board determines that a reprisal has been taken against the complainant contrary
to section 21, the board may order that one or more
of the following measures be taken:
(a) the complainant be permitted to return to his or
her duties;
(b) the complainant be reinstated or damages be
paid to him or her, where the board considers that the trust relationship between
the parties cannot be restored;
(c) compensation be paid to the complainant in an amount
not greater than the remuneration that the board considers would, but for the reprisal,
have been paid to the complainant;
(d) an amount be paid to the complainant equal to the
expenses and other financial losses that the complainant has incurred as a direct
result of the reprisal;
(e) the activity that constitutes the reprisal
cease;
(f) the situation resulting from the reprisal be
rectified; and
(g) a person do or refrain from doing any thing in
order to remedy a consequence of the reprisal.
Labour Relations Act
applies
23. Sections
15, 15.1, 16, 17.1, 18, 135, 136 and 139 of the Labour Relations Act and the rules of procedure for the board made
under that Act apply to a proceeding before the board under this Act, with the necessary
changes.
False or misleading
statement
24. (1) A
person shall not knowingly make a false or misleading statement, orally or in writing,
to the citizens' representative or to a person acting on behalf of or under the
direction of the citizens' representative
(a) when that person is requesting advice about making
a disclosure;
(b) when that person is making a disclosure; or
(c) during an investigation.
(2) A person shall not knowingly make a false or
misleading statement, orally or in writing, respecting a complaint about a reprisal
to the board or a person acting on behalf of or under the direction of the
board.
(3) A person shall not wilfully obstruct
(a) the citizens' representative or a person acting
on behalf of or under the direction of the citizens' representative in the performance
of a duty under this Act; or
(b) the board or a person acting on behalf of or
under the direction of the board in the performance of a duty under this Act.
(4) A person shall not, knowing that a document or
thing is likely to be relevant to an investigation under this Act,
(a) destroy, mutilate or alter the document or thing;
(b) falsify the document or make a false document;
(c) conceal the document or thing; or
(d) direct, counsel or cause, in any manner, a person
to do anything described in paragraphs (a), (b) or (c).
(5) A person who contravenes this section or section
21 is guilty of an offence and is liable on summary
conviction to a fine of not more than $10,000.
Protection from liability
25. An
action or proceeding may not be brought against the citizens' representative or
a person acting on behalf of or under the direction of the citizens' representative
for anything done or not done, or for neglect,
(a) in the performance or intended performance of a
duty under this Act; or
(b) in the exercise or intended exercise of a power
under this Act
unless it is shown that he or she was acting
in bad faith.
Arranging legal
advice
26. Where
the citizens' representative is of the opinion that it is necessary in order to
further the purpose of this Act, he or she may, subject to the regulations,
arrange for legal advice to be provided to employees and others involved in a
proceeding under this Act.
Disclosures- frivolous,
vexatious, bad faith
27. An
employee who makes a disclosure of a wrongdoing, where the disclosure is
frivolous, vexatious or in bad faith, is subject to appropriate disciplinary
action in addition to and apart from another penalty provided for by law.
Regulations
28. The
Lieutenant-Governor in Council may make regulations
(a) designating a body as a public body for the purpose
of this Act;
(b) exempting Acts or regulations from the application
of section 10 where the exemption is in the public
interest;
(c) respecting the provision of legal advice under
section 26, including determining the
circumstances under which legal advice may be provided and the amounts that may
be paid;
(d) defining a word or phrase used but not defined
in this Act; and
(e) generally, to give effect to this Act.
RSNL1990 cL-1
Amdt.
29. (1) The Labour Relations Act is amended by adding immediately after section
17 the following:
Referral under Public
Interest Disclosure and Whistleblower Protection Act
17.1 (1) An
employee or former employee who alleges that a reprisal has been taken against
him or her may apply to the board in accordance with section 22 of the Public
Interest Disclosure and Whistleblower Protection Act for a determination of
whether a reprisal has been taken contrary to section 21
of that Act.
(2) Notwithstanding subsection (1), where the
board determines that another proceeding is capable of appropriately dealing
with the substance of a complaint, the board may, at any time before the complaint
is considered, defer further consideration of the complaint until the outcome
of the other proceeding.
(3) In making a determination under subsection (2),
the board shall consider all relevant factors, including the subject matter and
nature of the other proceeding and the adequacy of the remedies available in
the other proceeding in the circumstances.
(4) Where the board defers consideration of a
complaint, the board shall serve the parties to the complaint with a written
notice of and the reasons for the deferral.
(5) The board may dismiss all or part of a
complaint where the board is satisfied that
(a) this Act provides no jurisdiction to deal with
the complaint or that part of the complaint;
(b) the complaint or that part of the complaint is
trivial, frivolous, vexatious or made in bad faith; or
(c) the substance of the complaint or that part of
the complaint has been appropriately dealt with in another proceeding.
(6) Where the board dismisses all or part of a
complaint, the board shall serve the parties to the complaint with a written
notice of and the reasons for the dismissal.
(2) Section 18 of the Act is amended by adding
immediately after paragraph (k.2) the following:
(k.3) make a determination of whether a reprisal has
been taken contrary to section 21 of the Public Interest Disclosure and Whistleblower
Protection Act;
Commencement
30. This Act comes into force on July 1, 2014.
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