PROTECTION AGAINST REPRISAL OVERVIEW

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Preamble of the Act

• It is in the public interest to maintain and enhance public confidence in the integrity of public servants

• Effective procedures for disclosure of wrongdoings and for protecting public servants who disclose wrongdoings enhance confidence in public institutions

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Procedures established under the Act

Two procedures established:

• a disclosure regime• internal (s. 12)• external (s. 13 and 14)• public (s. 16)

• a protection against reprisal regime- prohibition to take reprisal or direct taking one (s. 19 and

42.3)

- essential to the viability of the disclosure regime

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Protection for public servants who disclose

• Protection if the discloser is a public servant (s. 2)

• every person employed in the public sector • every member of the RCMP• every chief executive

• Sanctions if the discloser is not a public servant• measures against the discloser (ss. 42.1(1) and 42.3)

• withhold any contractual payment (ss. 42.2(1) and 42.3)

• terminate a contract (ss. 42.2(1) and 42.3)

• prohibition entering into contract (ss. 42.2(2) and 42.3)

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Definition of reprisal (1) (s. 2)

Measure taken against a public servant

• who has made a protected disclosure :• in accordance with the Act• in the course of a parliamentary proceeding• in the course of a procedure established under another Act

of Parliament• when lawfully required to do so

• who has cooperated in an investigation • initiated after a disclosure• commenced under section 33 of the Act

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Definition of reprisal (2) (s. 2)

Measures identified :

• a disciplinary measure• a demotion• a termination, a discharge or a dismissal• any measure that adversely affects the employment or working

conditions• a threat to take any of these measures

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Complaint of reprisal (s. 19.1)

• filed by a public servant or a former public servant

• not later than 60 days of the knowledge of the reprisal

• if filing, no other procedure on the alleged measures of reprisal • under any other Act of Parliament• under a collective agreement

• if RCMP member, internal procedures have to be exhausted• procedure under sections IV et V of the RCMP Act• procedure related to discharge under RCMP Regulations

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Process related to complaint of reprisal

Three steps within the Commissioner’s Office:

• admissibility analysis

• investigation of the complaint

• application to the Public Servants Disclosure Protection Tribunal (the Tribunal)

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Admissibility analysis (1)

• information provided only by the complainant• information provided is considered founded• evidence to support information• recommendation by an analyst and decision of the Commissioner

within 15 days after the filing of the complaint (al. 19.4(1))

• suspension of calculation of time between the filing of the complaint and the decision to take any procedure under any other Act of Parliament or collective agreement, except if he complaint is not made in good faith (al. 19.4(4))

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Admissibility analysis (2)

• The Commissioner may refuse to investigate if : (s. 19.3(1))• the subject-matter of the complaint has been dealt adequately:

• according to a procedure provided under an Act of Parliament (or could be more adequately dealt)

• according to a collective agreement (or could be more adequately dealt)

• according to internal regime, if RCMP member• the complaint is beyond its jurisdiction• the complaint was not made in good faith

• The Commissioner cannot investigate if a person or body is dealing with the subject-matter of the complaint under another Act of Parliament or a collective agreement (s. 19.3(2))

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Admissibility analysis (3)

Notice sent by the Commissioner after the admissibility analysis of the complaint

• if the complaint is admissible (s. 19.4(2))

• decision to the complainant

• decision to the person or entity that has the authority to take disciplinary action

• if the complaint is not admissible (s. 19.4(3))

• decision with reasons to the complainant

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Investigation (1)

• the Commissioner designates an investigator (s. 19.7(1))

• the investigator informs the chief executive (and possibly other persons) of the investigation and the substance of the complaint (ss. 19.8(1) et (2))

• the investigation is to be conducted as informally and expeditiously as possible (s. 19.7(2))

• the investigator has access to facilities and information required (s. 19.9(1))

• no powers under Part II of the Inquiries Act• report to Commissioner if there is insufficient cooperation

preventing the investigator to complete his investigation (s. 19.9(2))

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Investigation (2)

• ascertain the information provided to the analyst• information comes from different sources• application of rules of natural justice and procedural fairness:

• right to be heard• right to be represented • right to an impartial investigation• right to a decision with reasons

• maximum duration of 12 months

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Conciliation (1)

• during the investigation, the investigator may recommend conciliation (s. 20(1))

• consent of the parties is needed• conciliator appointed (and paid) by the Commissioner (s. 20(2))

• without prejudice and admission• confidentiality of information received (s. 20(4))

• the investigator cannot be the conciliator (s. 20(3))

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Conciliation (2)

• if failure → continuation of the investigation • if settlement → approval by the Commissioner (s. 20.2(1))

→ enforceable by the Federal Court (s. 20.2(4))

Two types of settlements:• settlement on remedy

• consequence → dismissal of the complaint (s. 20.2(2))

• settlement on disciplinary action • consequence → the Commissioner cannot apply to the Tribunal

for an order on disciplinary action against the respondent (s. 20.2(3))

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Decision after investigation (1)

• Investigator submits investigation report to the Commissioner (s. 20.3)

• Decision of the Commissioner → 2 options • dismissal of the complaint (s. 20.5)

• application to the Tribunal (2 options)• order respecting a remedy (s. 20.4(1)a))

• order respecting remedy and disciplinary action (s. 20.4(1)b))

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Decision after investigation (2)

Factors considered by the Commissioner in decision making (s. 20.4(3)) :

• reasonable grounds for believing that reprisal was taken (3 elements : protected disclosure, measure et link)

• investigation cannot be completed because of lack of cooperation (no Inquiries Act powers and report to the Commissioner)

• the complaint should be dismissed on grounds related to the admissibility of the complaint (subject-matter of the complaint already dealt with, no jurisdiction, no good faith)

• public interest to make an application to the Tribunal

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Decision after investigation (3)

• Application to the Tribunal for proceeding with the complaint or allegations

• Notice sent by the Commissioner after dismissal or application to the Tribunal (art. 20.6)• to the complainant • to the employer • to the former employer if the complainant is a former public

servant• to persons identified as taking reprisal • to person or entity with the authority to take disciplinary action

against respondents

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Complaint (allegations) before the Tribunal

After an application to the Tribunal

• the file is under the control of the Tribunal• application of the Rules of Procedure of the Tribunal• the Commissioner becomes a party among other parties before

the Tribunal • the Commissioner leaves the driver’s seat to a passengers’ seat

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Possible challenge of a decision of the Commissioner (admissibility analysis, investigation or application to the Tribunal)

• through a judicial review before the Federal Court• grounds for reviewing:

• error of facts• error of law• capricious decision • non respect of rules of natural justice natural and procedural

fairness

Judicial Review

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Legal Access Request (s. 25.1)

Possibility to ask Commissioner for access to legal advice

• discretionary power of the Commissioner• by a public servant who is considering making a complaint • by any person who is involved in a proceeding regarding reprisal• refusal if free legal advice can be provided from another source• criteria : possibility of being adversely affected • amount : $1,500 $ or $3,000 (depending of circumstances)