Alberta’s whistleblower protection law should apply to more public entities and those who contract with the province, and should be strengthened to protect complainants from being sued, the public interest commissioner told a legislative committee earlier this month.
On. Feb. 4, commissioner Marianne Ryan appeared before the legislature’s standing committee on resource stewardship to present her office’s recommended changes to the whistleblower protection act. This legislation came into effect in 2013 and is undergoing its second mandatory review.
As public interest commissioner, Ryan investigates allegations of wrongdoing under the act as well as complaints from employees who claim they faced reprisal for whistleblowing.
Ryan, the former commanding officer of the RCMP in Alberta, told the legislative committee the law currently does not provide protections to people who enter into contracts or agreements with the government, but it should.
“This would include a broad sector of the private sector and include vulnerable sectors such as continuing care services for seniors, management bodies of housing accommodations and child-care service providers,” she said.
Ryan also highlighted a major stumbling block to public employees whistleblowing: the fear they will be sued.
“Employees are deterred from reporting wrongdoing to my office, because they believe doing so may expose them to civil liability,” Ryan said.
In her November 2020 written submission to the committee, Ryan noted the law only provides protection against civil liability for whistleblowers when they comply with a requirement of the act, not when they come forward to report wrongdoing or a reprisal.
Employees worry that reporting wrongdoing after signing a severance agreement may breach the agreement’s terms and leave them open to legal action, she wrote.
“In one particular case, an employer withheld an employee’s severance payment because of a complaint to the commissioner’s office,” Ryan said. “In another case, an employee ultimately declined to make a disclosure of wrongdoing after seeking independent legal advice.
“It was believed their employer would seek to recover the severance payment through civil action if a disclosure was made.”
Ryan said the act should be amended to protect individuals who make complaints from civil liability and its protections extended to all people who report wrongdoing, or even those suspected of making a complaint, regardless of whether they still work for the organization.
“We have encountered circumstances where employers have sought to identify whistle-blowers and even indicated an intention to harm suspected whistleblowers,” Ryan told the committee.
“We believe this is a serious deficiency in the act.”
Her other recommendations included that the law cover 71 public agencies currently excluded from the act, private post-secondary institutions that receive government funding and all subsidiary health corporations such as Alberta Precision Laboratories. Confidentiality provisions should also be strengthened, she said.
Act’s flaws ‘render the entire system ineffective’: expert
Ryan’s manager of investigations said these recommended changes would bring the law “strongly in line with international best practices,” but other experts who presented to the committee said Alberta’s law is far from world-class.
David Hutton, a senior fellow with Ryerson University’s Centre for Free Expression, said overall Alberta’s law is “not fit for what we want to accomplish.”
“Some of these shortcomings are particularly serious,” Hutton said, adding that “any one of them would render the entire system ineffective.”
Examples from Hutton’s submission include that under the law, there is only a limited scope of what can be reported; there is no duty to protect the complainant or offer them any relief as their claims are investigated; and in the case of reprisal allegations, the burden of proof is on the complainant.
The commissioner has no order powers and also lacks independence because they are appointed by government, he said.
Hutton noted the essential role whistleblowers play in revealing governance and corruption issues, often at great personal cost.
Whistleblowers act “as kind of a firewall to protect both the public and the government from incompetence or corruption within the bureaucracy,” he told the committee.
“Conversely, silencing and crushing whistleblowers simply ensures that senior leaders will be kept in the dark until it is too late.”
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