In 2018, Alberta amended its whistleblower protection legislation. It is a modest improvement over previous legislation, and relative to the federal Act. However, in a number of respects, the legislation does not go far enough.
First, a little bit of context. Whistleblowing legislation serves two inter-related purposes: upholding the public interest in exposing serious wrongdoing, while protecting employees who blow the whistle on that wrongdoing. On this last point, the legislation is remedial by protecting the employee from dismissal or reprisal that might otherwise be permitted at common law. In Canada, whistleblowing legislation (which exists in most provinces) applies only to the public sector. Canada is considered to lag behind other countries in the protection it offers to whistleblowers.
In what follows, I highlight the changes to, and shortcomings of, the Alberta Act, with the occasional comparison or contrast with the federal Act.
A persistent problem in Canadian legislation is the high threshold language of what constitutes a “wrongdoing” that becomes a protected disclosure. Usually, the matter must involve contravening a statute, “serious” or “substantial” danger to life, health or the environment, or “gross mismanagement”. The Alberta amendment improves the language by offering a sense of what constitutes “gross mismanagement” and arguably lowering the threshold of how this broad term might otherwise be interpreted (s. 3).
Evidence and Motive
What sort of evidence does one need before reporting? Must one’s motives be solely in the public interest and not actuated by malice toward an employer? On the positive side, the Alberta Act provides a forgiving standard of proof. A legitimate disclosure can be made if the employee “reasonably believes” that a wrongdoing has been, or will be, committed (s.9).
This safe threshold is effectively taken away in the remedy section of the Act. Here, protection against reprisal rests on a disclosure made in “good faith” (s. 24). Suddenly, one’s motives for bringing forward a complaint are at issue, and are vulnerable to manipulation especially if the relationship between the whistleblower and alleged wrongdoer or employer is acrimonious.
The Stepladder Process
The Alberta Act requires that internal mechanism be completed before moving on to a complaint to the Commissioner (who then may investigate). There is no provision, however, for reporting directly to the public in urgent cases, as provided in the federal Act.
It is worth noting that whistleblower protection does not distinguish between internal and external disclosures. In other words, while we might want high thresholds for wrongdoing in place for going public or even complaints to the Commissioner, the same rationale does not necessarily apply to internal disclosures. This is an important point since the majority of reported cases to the Commissioner (both provincially and federally) involve improprieties that do not reach the level of “wrongdoing” as defined in the legislation.
Confidential Disclosures and Spillover Retaliation
There is provision in the Alberta legislation for disclosing wrongdoing anonymously to the Commissioner (s. 21). However, there is a gap here. Where the employer (rightly or wrongly) infers the identity of the employee and retaliates, the employee may not be protected since they not formally connected with a protected disclosure. Spillover retaliation is also an issue for those employees who support a whistleblower, but there is no protection offered for this.
The Availability of Legal Advice
Given the high threshold language of “wrongdoing” (and the nexus between meeting that threshold and making a successful reprisal claim), as well as other ambiguities in the Act (e.g. the duty of the employee to take reasonable precautions to not disclose personal or confidential information), employees need access to legal advice before going the whistleblowing route. There is no mechanism in the Alberta Act to provide this advice.
Reprisal and Remedy
The Alberta Act provides broad remedies, including reinstatement, corrective compensation and solicitor-client costs (for prosecuting an allegation of reprisal though the Board). Making the connection between a reprisal and a formal protected disclosure is essential for a remedy, which actually incentivizes formal complaints. It is not clear why whistleblower legislation generally requires that a complaint be formally launched (as compared with informally raised) as a precedent condition for a remedy.
Also, proving a connection between a disclosure and a reprisal can be difficult. The Alberta Act does nothing, such as creating a presumption in favor of the employee or reversing the onus to the employer, to alleviate this burden. Finally, reinstatement to former employment may not be an acceptable remedy for an employee (or even realistic). A “transfer option” to another position should be an available remedy.
Given all of these problems with the Alberta and federal legislation, there seem very few – if any – cases where one could feel comfortable advising a client to blow the whistle on their employer. The literature suggests that other provinces have similar problems with their legislation. This is a sad statement on the state of whistleblowing protection in Canada.