Province Introduces Legislation That Would Protect Whistleblowers From Reprisal, Prevent Disclosure of Identities

On June 11, the Manitoba government introduced proposed amendments to the Public Interest Disclosure Act to protect whistleblowers from reprisal, prevent disclosure of identities and give designated officers greater powers to investigate wrongdoing.

The proposed amendments are based on recommendations resulting from a comprehensive review (log in required) conducted by Dianna Scarth, former executive director of the Manitoba Human Rights Commission, as well as recommendations from the ombudsman.

What is the purpose of the amendments?

Specifically, the amendments would:

• Ensure anyone who becomes aware of significant and serious wrongdoing in, or relating to the public service, feels they can disclose it to the appropriate officials without fear of reprisal.
• Clarify the process for disclosing wrongdoing, including requiring a supervisor who receives a disclosure from an employee to promptly refer the matter to the designated officer. This would also require all people involved in the investigation or management of a disclosure to protect the identity of whistleblowers. The amendments would authorize the ombudsman to request, review and provide recommendations concerning the disclosure procedures of a public body. The amendments would also clarify which disclosures are to be investigated by a designated officer and which by the ombudsman.
• Prohibit the disclosure of a whistleblower’s identity in a civil court proceeding or a proceeding of an administrative tribunal.
• Give greater powers to the designated officers to conduct investigations, including the power to compel an employee to produce documents and be interviewed for the purpose of an investigation. The amendments would also clarify that a designated officer may consult with the ombudsman, the chief executive or other people as necessary regarding the conduct of an investigation.
• Specify that an investigator must take steps to protect the identity and the procedural rights of all people involved in the investigation, including the whistleblower, witnesses and the person alleged to have committed the wrongdoing.
• Empower the ombudsman to receive and investigate reprisal complaints, and take immediate action to address acts or threats of reprisal by employers, and specify the circumstances in which a designated officer or the ombudsman may decide not to investigate a disclosure.
• Allow the designated officer or the ombudsman to determine the manner in which the whistleblower is to be informed of the results of an investigation.
• Permit employees to file a further complaint to the Manitoba Labour Board about an alleged reprisal if he or she is not satisfied with the outcome of the ombudsman’s process.
• Require a review of the Act every five years.
• Require information about the Act to be annually communicated to employees.

Disclosures would be handled by a senior official within the government entity (referred to as a “designated officer”) or by the ombudsman.

If enacted, the amendments would come into force January 1, 2016.

Why are these amendments needed?

According to the Scarth report (In PDF), since the Public Interest Disclosure Act (PIDA) was proclaimed in 2007, the vast majority of disclosures have been made to the ombudsman. The only recourse for whistleblowers who face reprisals from their bosses is through the Manitoba Labour Board. That process involves the complainant revealing her or his identity.

In 2013, there were 42 disclosures under PIDA made to the ombudsman (with a number dealing with the same matter) and three made within government. But in most years since the legislation was proclaimed, total disclosures have numbered in the single digits.

The proposed amendments make for a very strong piece of legislation. By increasing identity protection for so-called whistleblowers, the effectiveness of the whistleblower protection and management of the public sector should improve since people who want to report government wrongdoing may also remain anonymous.

In addition, by giving more power to the provincial ombudsman to investigate and report on complaints, transparency will increase.