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1st Session, 37th Parliament, 49-50 Elizabeth II,
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House of Commons of Canada
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BILL C-206 |
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An Act respecting the protection of whistle
blowers and to amend the Auditor
General Act, the Parliamentary
Employment and Staff Relations Act and
the Public Service Staff Relations Act
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SHORT TITLE |
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Short title
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1. This Act may be cited as the Whistle
Blowers Protection Act.
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PURPOSE OF ACT |
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Purpose of
Act
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2. The purpose of this Act is to protect
members of the Public Service of Canada
from retaliation for making, in good faith,
allegations of wrongdoing and to provide a
means for making the allegations in confi
dence to an independent officer who will
investigate them and report to Parliament any
problems that are confirmed but not corrected.
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INTERPRETATION |
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Definitions
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3. The definitions in this section apply in
this Act.
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``Auditor
General'' « vérificateur général »
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``Auditor General'' means the Auditor
General of Canada.
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``employee'' « fonction- naire »
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``employee'' means a person who is an
employee within the meaning of the Public
Service Staff Relations Act or the
Parliamentary Employment and Staff
Relations Act.
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``Public
Service'' « fonction publique »
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``Public Service'' means the parts of the public
service of Canada to which the Public
Service Staff Relations Act or the
Parliamentary Employment and Staff
Relations Act apply.
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``wrongful
act'' « abus »
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``wrongful act'' means an act or omission that
is
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REPORT BY EMPLOYEE |
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Report by
employee
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4. (1) An employee who has reason to
believe that an official in the Public Service
has committed or has indicated an intention to
commit a wrongful act may send a report on
the matter to the Auditor General in writing,
identifying the employee and stating the
precise grounds on which the employee
believes
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Initial review
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(2) The Auditor General, on receiving a
report under subsection (1), shall review the
report, may ask the employee for further
information and may make such further
enquiries as are necessary in the opinion of the
Auditor General.
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Section 13 of
the Auditor
General Act
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5. (1) Section 13 of the Auditor General Act
applies to any inquiry made by the Auditor
General under this Act.
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Functions
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(2) The functions of the Auditor General
under this Act are within the work of the office
of the Auditor General for the purposes of the
Auditor General Act.
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Report
rejected
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6. (1) If the Auditor General is of the
opinion that the matter reported
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the Auditor General shall so advise the em
ployee and take no further action on the mat
ter.
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Mistake
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(2) A report is not made in bad faith solely
on the grounds that it is based on mistaken
facts.
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False or
misleading
statement
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(3) If the report contains any statement the
employee knew to be false or misleading at the
time it was made, the Auditor General may
determine that the report was made in bad
faith.
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Good faith
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(4) An employee shall be presumed not to
act in good faith where, in making a disclosure
referred to in subsection (1), the employee
violates any statute of the Parliament of
Canada or a rule of law protecting privileged
communications as between solicitor and
client, unless the Auditor General determines
on a balance of probabilities that the violation
was prompted by reasonable concerns for
public health or safety.
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Breach of
oath
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(5) A report to the Auditor General by an
employee in good faith pursuant to section 4
is not a breach of any oath of office or loyalty
or secrecy taken by the employee.
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Report
accepted
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7. (1) If the Auditor General is of the
opinion that
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the Auditor General shall so advise the em
ployee, make whatever further inquiries are
necessary to ascertain the details of the matter
and make a report on the matter to the minister
of the Crown responsible for the matter.
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Response by
minister
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(2) A minister who receives a report under
subsection (1) shall investigate the matter and
make a response to the Auditor General
advising of any action the minister has taken
or will take to deal with the matter.
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Report to
Parliament
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(3) The Auditor General shall make a report
to Parliament of the substance of the report
made by the employee and the response made
by the minister in the manner provided by
section 7 or 8 of the Auditor General Act.
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Annual report
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(4) The Auditor General shall include in the
annual report to Parliament made pursuant to
the Auditor General Act a statement of
activity under this Act including
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PROHIBITIONS |
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No
disciplinary
action
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8. (1) No person shall subject an employee
to any disciplinary action resulting in a
demotion, suspension, dismissal, financial
penalty, loss of seniority, advancement or
opportunity in the Public Service on the
grounds of having made a report in good faith
under section 4.
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Presumption
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(2) Where a person takes disciplinary action
of a type described in subsection (1) against an
employee within the year following receipt by
the Auditor General of Canada of a report sent
by the employee under section 4, the person
shall be deemed, in the absence of a prepon
derance of evidence to the contrary, to have
taken such disciplinary action against the
employee solely because the employee sent
the report to the Auditor General of Canada.
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No mention in
reference
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(3) No member of the Public Service shall
divulge to any person the existence or nature
of a report made by an employee pursuant to
section 4 in such a way as to identify the
employee or mention it in any oral or written
report, reference or other communication
made or given with respect to the employee.
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False
information
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(4) No employee or other person shall give
false information to the Auditor General under
section 4.
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OFFENCES AND PUNISHMENT |
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Offences and
punishment
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9. (1) A person who contravenes a provision
of subsection 8(1), (3) or (4) of this Act is
guilty of an offence and liable on summary
conviction to a fine not exceeding $5000.
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For greater
certainty
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(2) For greater certainty, the fact that
proceedings have been brought under subsec
tion (1) does not preclude recourse to any
grievance proceedings provided for under an
Act of Parliament and based on the same facts
alleged in the proceedings under subsection
(1).
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R.S., 1985, c.
A-17 1995, c.
43, 5.3 1994,
c. 32, ss. 1 and
2
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AUDITOR GENERAL ACT |
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10. Section 7 of the Auditor General Act is
amended by adding the following after
subsection (2):
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Annual report
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(2.1) In the annual report referred to in
subsection (1), the Auditor General shall
include an analysis of the administration and
operation of the Whistle Blowers Protection
Act with recommendations pertaining to the
continuation of this Act and the changes
required thereto, if any.
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R.S., 1985, c.
33 (2nd supp.)
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PARLIAMENTARY EMPLOYMENT AND STAFF RELATIONS ACT |
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11. Section 62 of the Parliamentary Em
ployment and Staff Relations Act is amended
by adding the following after subsection (1):
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Right of
employee
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(1.1) Subject to subsection (1.2) and, for
greater certainty, where an employee feels
aggrieved as a result of any disciplinary action
against the employee resulting in a demotion,
suspension, dismissal, financial penalty, loss
of seniority, advancement or opportunity
related to the employee's employment on the
grounds of having made a report in good faith
in accordance with section 4 of the Whistle
Blowers Protection Act, the employee is
entitled to present a grievance under subsec
tion (1) at each of the levels, up to and
including the final level, in the grievance
process provided for by this Act.
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Presumption
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(1.2) An employee who presents a griev
ance with respect to any disciplinary action
that, in the opinion of the employee, was taken
in the circumstances referred to in subsection
(1.1) shall receive the benefit of the presump
tion set out in subsection 8(2) of the Whistle
Blowers Protection Act.
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12. (1) Subsection 63(1) of the Act is
replaced by the following:
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Reference of
grievance to
adjudication
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63. (1) Where an employee has presented a
grievance, up to and including the final level
in the grievance process, with respect to
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and the grievance has not been dealt with to
the satisfaction of the employee, the employee
may refer the grievance to adjudication.
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(2) Section 63 of the Act is amended by
adding the following after subsection (3):
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Presumption
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(4) An employee who refers to adjudication
a grievance with respect to any disciplinary
action that, in the opinion of the employee,
was taken in the circumstances referred to in
subsection 62(1.1) shall receive the benefit of
the presumption set out in subsection 8(2) of
the Whistle Blowers Protection Act.
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added, 1992,
c. 1, s. 111
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13. Section 66.1 of the Act is replaced by
the following:
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Powers of
adjudicator
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66.1 An adjudicator has, for the purposes of
the adjudication of a grievance respecting a
matter referred to in paragraph 63(1)(a), (a.1) ,
(b) or (c) that is referred to adjudication, the
powers that the Board has under section 15,
other than paragraph 15(e) or (f), in relation to
the hearing or determination of a proceeding
before it.
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14. Section 67 of the Act is amended by
adding the following after subsection (2):
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Special
compensation
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(2.1) Where an employee has referred a
grievance under subsection 62(1.1) in relation
to a disciplinary action to an adjudicator, the
adjudicator may, if the adjudicator finds that
the employee has suffered in respect of
feelings or self-respect as a result of the
disciplinary action, and in addition to any
other order the adjudicator may make, order
the employer who took the disciplinary action
to pay such compensation to the employee,
not exceeding five thousand dollars, as the
adjudicator may determine.
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15. Section 84 of the Act is renumbered as
subsection 84(1) and is amended by adding
the following after that subsection:
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Annual report
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(2) The annual report shall include the
number of grievances referred to adjudication
under paragraph 63(1)(a.1).
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