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Bill C-201

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First Reading

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	2nd Session, 37th Parliament, 51 Elizabeth II, 2002
	House of Commons of Canada
	BILL C-201
	An Act respecting the protection of employees in the public service who make allegations in good faith respecting wrongdoing in the public service
Preamble	Whereas Canada is committed to promoting the dignity and human rights of its public service employees by providing protection to employees who report waste, fraud, abuse of authority, violations of law or threats to public health or safety;
	And Whereas Parliament recognizes that the public interest is served when employees are free to make such reports without fear of or exposure to retaliation or discrimination of any kind, and that the recognition of the right of employees to pursue appropriate communications with the public will reaffirm and guarantee that public offices are genuine public trusts;
	Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

Short title	1. This Act may be cited as the Whistle Blower Human Rights Act.
Definitions	2. The following definitions apply in this Act.
``employee'' « fonctionnair e »	``employee'' means a person who
	(a) is or has been employed in or is being considered as an applicant for a position in the public service of Canada including
	(i) those parts of the public service to which the Public Service Staff Relations Act, the Parliamentary Employment and Staff Relations Act, the National Defence Act or the Royal Canadian Mounted Police Act apply, or
	(ii) a Crown corporation, parent Crown corporation or departmental corporation as defined in the Financial Administration Act;
	or
	(b) provides goods or services to any of the parts of the public service or corporations mentioned in paragraph (a) pursuant to a contract.
``prohibited personnel action'' « mesure administra- tive interdite »	``prohibited personnel action'' includes but is not limited to
	(a) a recommended, threatened, or actual discharge; suspension; constructive dismissal; involuntary transfer, assignment or deployment; reprimand or demotion of an employee;
	(b) any adverse employment action taken against an employee in the terms and conditions of employment including the failure to promote or hire or take other favourable personnel action; or
	(c) retaliation, discipline or discrimination of any kind either recommended, applied or threatened against an employee that is pursued because the employee engaged or evidenced an intention to engage in a protected behaviour.
``protected behaviour'' « acte protégé »	``protected behaviour'' means
	(a) disclosure by an employee to a supervisor or public body, of information that evidences the contravention of any enactment, rule, code of practice, professional statement or directive that applies to or has been adopted by the part of the public service about which the disclosure is made;
	(b) disclosure by an employee to a supervisor or public body, of information that evidences mismanagement including incompetence and dishonesty, misconduct, misuse or waste of public resources or funds, corruption, abuse of authority, potential or immediate danger to public or worker health and safety including both mental and physical well being;
	(c) disclosure by an employee to a supervisor or public body, of information that evidences a potential or immediate danger to the environment, national security or sovereignty of Canada;
	(d) refusal by an employee to participate in any activity or undertaking that evidences a contravention of any enactment, or any rule, code of practice, professional statement or directive that applies to or has been adopted by the part of the public service in which the employee works;
	(e) refusal by an employee to participate in any activity or undertaking that constitutes mismanagement, misuse or waste of public resources or funds, corruption, abuse of authority, potential or immediate danger to public or worker health and safety including their mental or physical well being;
	(f) refusal by an employee to participate in any activity or undertaking that constitutes potential or immediate danger to the environment, national security or sovereignty of Canada; or
	(g) participation by an employee in any free speech initiative or activity that is lawful.
``public body'' « organisme public »	``public body'' means
	(a) either House of Parliament or any committee of either or both of them, or any member of either House;
	(b) the Office of the Auditor General;
	(c) any court constituted under an Act of Parliament or of the legislature of a Province, or any public or judicial enquiry or commission established pursuant to such an Act or by order of the Governor in Council or any member of such court, enquiry or commission;
	(d) any federal, provincial, or local regulatory, administrative or public agency or authority or a creation thereunder;
	(e) the Royal Canadian Mounted police, or any other law enforcement agency in Canada or peace officer;
	(f) any department or ministry of the federal or provincial government;
	(g) a parent Crown corporation or Crown corporation as defined in the Financial Administration Act;
	(h) any division, board, bureau, office, committee, commission, agency or employee of any of the persons or bodies described in paragraphs (a) to (g); or
	(i) any publishing or broadcasting entity or other form of the media or any person representing any of them.
Employee protection	3. No employee shall be subjected or feel threatened by any prohibited personnel action taken as a result of engaging in or evidencing an intention of engaging in any protected behaviour.
Remedies	4. (1) An employee who has been subjected to a violation of this Act has the right, in addition to any administrative process that may be available to the employee under the Public Service Staff Relations Act, the Parliamentary Employment and Staff Relations Act, the National Defence Act or the Royal Canadian Mounted Police Act, to bring a civil action before a court of competent jurisdiction and elect trial by judge alone or by judge and jury for relief including reinstatement, appointment to an equivalent position, injunctive relief, retroactive payment of remuneration, lost seniority rights or other benefits, including interest, compensation for any lost future promotions and related benefits, general damages, exemplary damages, punitive damages, the reasonable costs and legal fees incurred by the employee, and any other award that the Court deems to be fair and equitable to restore the dignity and well being of the employee.
Recovery of legal fees regardless of forum	(2) An employee shall be reimbursed, when relief is granted for legal fees incurred, regardless of whether the relief is granted by a court, or results from an administrative proceeding or agreement between the parties.
Limitation	(3) An action under subsection (1) must be commenced within two years of
	(a) the alleged violation or in the case of a continuing violation, the date it ceased, or
	(b) the employee first becoming aware of the violation,
	whichever is later.
Burden of proof	(4) In an action under subsection (1), once it has been established that the alleged prohibited personnel action was in any way related to the employee's engagement in a protected behaviour, the burden of proof shall be on the defendant to prove by clear and convincing evidence that the prohibited personnel action would have been taken regardless of the protected behaviour and for legitimate, lawful reasons.
One proceeding	(5) No employee may initiate or pursue an action under subsection (1) at the same time as an administrative proceeding under the Public Service Staff Relations Act, the Parliamentary Employment and Staff Relations Act, the National Defence Act or the Royal Canadian Mounted Police Act based on the same alleged cause, but may discontinue an administrative proceeding at any time prior to a final decision and commence an action under subsection (1) on the same issues.
Choice of action	(6) An employee who prevails in a civil action at the trial level or an administrative proceeding at the first level shall be granted the equitable relief ordered as of the date of the decision.
Other rights protected	(7) Except as provided in subsection (5), nothing in this Act limits or abrogates any right or remedy at law otherwise available to an employee.
Rights to express opinions	5. (1) Employees have the right, free from restrictions, to
	(a) freely express their opinions on all public issues, including those related to the duties they are assigned to perform, provided such opinion is stated to be independent from any existing official policy; and
	(b) freely associate with others and pursue free speech and the exchange of ideas regarding matters of personal and public interest related to public programs, resources and funds and to notify the public and other employees of such meetings or exchanges of ideas.
Rights respecting work conditions	(2) Employees have the right to humane, dignified and civil working conditions of employment that serve to promote personal growth, health and well being and allow for the unhindered discharge of job responsibilities.
Confidentia- lity	(3) A disclosure or freedom of speech exercised by an employee under this Act does not violate any other requirement for secrecy or confidentiality on the part of the employee.
Duty to disclose	6. Every employee has a duty to disclose to a supervisor or to a public body any conduct known to the employee that evidences a contravention of this Act and that affects the employee or any other employee.
Posting of rights	7. The President of the Treasury Board shall ensure that a notice showing the provisions of this Act and a clear summary of the employees' rights and guarantees of protection in it, is posted in conspicuous places where employees work and shall ensure the use of other means to inform employees about this Act, including but not limited to
	(a) the provision of a summary at the time of engagement of an employee;
	(b) the inclusion of information with annual tax returns;
	(c) the provision of information at public hearings held under the authority of the Government of Canada; and
	(d) periodic notices in the media and at educational facilities.
Offence and penalty	8. (1) A supervisor, manager, or other person with authority respecting an employee who contravenes section 3 is subject to criminal prosecution and faces a fine of up to $5000.
Personal liability of supervisor	(2) A supervisor, manager, or other person with authority respecting an employee who contravenes section 3 is subject to personal liability for any resulting damages that may be awarded to the employee pursuant to any civil or administrative proceeding.
Discipline	(3) A supervisor, manager, or other person with authority respecting an employee who contravenes section 3 is, in addition to the provisions of subsections (1) and (2), liable to discipline including dismissal.
Recognition of employee	9. An employee who is successful in a claim pursuant to this Act shall be issued a public apology by the minister responsible for the relevant department and shall be recognized with an ex gratia award to be determined by the President of the Treasury Board taking into account the overall harm and suffering sustained by the employee and any general damages awarded in civil proceedings.
Referral of allegations	10. (1) Every minister of the Crown shall ensure that every allegation in writing received from an employee within or related to the part of the public service for which the minister is accountable is independently investigated forthwith including consultation with the employee and that a report is submitted to the minister within 30 days of the allegation being received.
Copy to employee	(2) Upon receipt of the report, the minister shall provide a copy to the employee for comment or rebuttal.
Remedial action	(3) Unless the report and any further comments by the employee satisfies the minister that the allegation is groundless, the minister shall ensure that remedial action is taken promptly, whether or not the employee commences any civil or administrative proceeding related to the allegation.
Public registry	11. (1) The President of the Treasury Board shall create a registry in which is deposited a copy of every written allegation made pursuant to this Act and every report made by an investigator pursuant to subsection 10(1), including any employee comment made pursuant to subsection 10(2).
Certain matters excluded	(2) A document included in the registry pursuant to subsection (1) shall have deleted from it any matter that
	(a) reveals information about a person that is to be kept private under the Privacy Act; or
	(b) could reasonably be expected to jeopardize national security or the public interest.
Public access	(3) The registry is a public document and the President of the Treasury Board shall ensure public access and availability of copies thereof at a reasonable cost, during normal business hours.

Bill C-201

BILL C-201