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Whistleblowers - Public Service

Public Interest Disclosure

Message from the Citizens' Representative

Members of the public service generally know when questionable conduct or activities are occurring in their workplace. For many years in Newfoundland and Labrador, certain public servants had a legal obligation in the public interest to disclose these activities. With the passage of the Public Interest Disclosure and Whistleblower Protection Act (the "Act"), members of the public service now have a broader legislative safety net to report wrongdoing. Further, the province now has a legal obligation to protect those individuals from harm or reprisal.

The purpose of the Act is to provide a mechanism for the disclosure and investigation of wrongdoing in the public service of Newfoundland and Labrador that an employee believes may be unlawful, dangerous to the public, or injurious to the public interest. The Act names the Citizens’ Representative as investigator of public interest disclosures.

This web page outlines the Act and provides answers to frequently asked questions on public interest disclosure. The Office of the Citizens' Representative is committed to providing prompt advice to members of the public service, and conducting timely and thorough investigations of disclosures in the public interest.

If you have questions or wish to speak with us about making a disclosure, contact the Office at (709) 729-7647 or 1-800-559-0079.

Barry Fleming, Q.C.
Citizens’ Representative

About Us

The Office of the Citizens’ Representative (“OCR”) was opened after passage of the Citizens’ Representative Act in 2001. The OCR is an Office of the House of Assembly that provides a province-wide ombudsman service with respect to provincial government services and programs. An ombudsman is a neutral official who receives and investigates complaints. While obligated to report its activities to the House of Assembly as a whole, the OCR operates independently of the political process. Its services are confidential, and free of charge.

The OCR is based in St. John’s and has seven staff in addition to the Citizens’ Representative. To read the biography of the Citizens’ Representative, Barry Fleming, click here.

Since 2007, the OCR has been responsible for the public interest disclosure program for the House of Assembly under the House of Assembly Accountability, Integrity and Administration Act. Staff have met annually with our Canadian counterparts in public interest disclosure to stay abreast of trends in this field of investigation, to exchange best practices, and to discuss matters of mutual interest.

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The Act

Public Interest Disclosure legislation exists throughout North America and in many countries around the world. By passing the Act, Newfoundland and Labrador has joined the provinces of Nova Scotia, New Brunswick, Ontario, Manitoba, Saskatchewan, Alberta and the Government of Canada, all of which have laws aimed at investigating significant and serious allegations of wrongdoing, and protecting against reprisal.

A link to the Act can be found here.

Its guiding principles are:

  1. to provide an avenue to report wrongdoing in the workplace,
  2. to enable the Citizens’ Representative as investigator and define his role, and,
  3. to prohibit reprisals and enable the Labour Relations Board to determine whether reprisals have been taken.

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Jurisdiction

The Act enables current employees in the core public service (ex.) line departments, as well as “public bodies,” to make disclosures.

Public Bodies are defined as:

  1. a corporation, the ownership of which or a majority of shares of which is vested in the Crown,
  2. a corporation, commission or body, the majority of the members of which, or a majority of the members of the board of directors of which are appointed by an Act, the Lieutenant Governor in Council or a minister,
  3. a school board or school district constituted or established under the Schools Act (1997), including the Conseil Scolaire Francophone, and
  4. a corporation, commission or other body designated by the regulation as a public body.

The Act does not apply to employees of Memorial University.

If you are unsure as to whether your employer is covered by the Act, contact us.

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Employees/Disclosers

An employee is defined as “an employee or officer of the public service.” Employees who believe they have witnessed wrongdoing are permitted to seek advice in confidence from the Citizens’ Representative, and to make a formal disclosure in good faith.

Section 8 of the Act states that a disclosure shall be in writing and shall include, if known, the following information:

  1. a description of the wrongdoing
  2. the name of the person alleged to
    1. have committed the wrongdoing, or
    2. be about to commit the wrongdoing
  3. the date of the wrongdoing; and
  4. whether the wrongdoing has already been disclosed and a response received.

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Wrongdoing

Wrongdoing is defined in Section 4(1) of the Act:

4.(1) This Act applies to the following wrongdoings in or relating to the public service:

  1. an act or omission constituting an offence under an Act of the Legislature or the Parliament of Canada, or a regulation made under an Act;
  2. an act or omission that creates a substantial and specific danger to the life, health or safety of persons, or to the environment, other than a danger that is inherent in the performance of the duties or functions of an employee;
  3. gross mismanagement, including of public funds or a public asset; and
  4. knowingly directing or counseling a person to commit a wrongdoing described in paragraph (a), (b) or (c).

Note that the Act specifies that it applies only in respect of wrongdoings that occur after the coming into force of the Act (ie) July 1, 2014.

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Reprisals

Reprisals are defined in Section 2(i) of the Act:

“reprisal” means one or more of the following measures taken against an employee because the employee has, in good faith, sought advice about making a disclosure, made a disclosure or cooperated in an investigation under this Act:

  1. a disciplinary measure
  2. a demotion
  3. termination of employment
  4. a measure that adversely affects his or her employment or working conditions, or
  5. a threat to take any of the measures referred to in sub-paragraphs (i) to (iv)

Reprisals against someone seeking advice about making a disclosure, against someone who has made a disclosure, or cooperated in an investigation are prohibited under Section 21 of the Act and punishable by disciplinary action, including termination of employment, in addition to any other penalty provided by an applicable law.

An employee who feels they have encountered a reprisal in their workplace may file a written complaint with the Labour Relations Board within 6 months of the reprisal being taken.

Where the Labour Relations Board determines a reprisal has occurred, it has the power under Section 22 of the Act to:

  1. Order the complainant be permitted to return to work,
  2. Order the complainant be reinstated or that damages be paid,
  3. Order that compensation be paid which would have been paid but for the reprisal,
  4. Order that an amount be paid equal to expenses or other financial losses incurred as a direct result of the reprisal,
  5. Order that the activity that constitutes the reprisal cease;
  6. Order that the situation resulting from the reprisal be rectified; and,
  7. Order that a person do or refrain from doing any thing in order to remedy a consequence of the reprisal.

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Our Process

The OCR is committed to conducting investigations as informally and expeditiously as possible, ensuring the right to procedural fairness and natural justice of all persons involved in an investigation is respected, including those making disclosures, witnesses, and persons alleged to be responsible for wrongdoing.

Upon receipt of a formal disclosure, the OCR will analyze it and may meet with the discloser in person. If an investigation is undertaken, the process will involve notifying the subject of the disclosure, obtaining and analyzing documents or other evidence, visiting sites, interviewing the subject and witnesses, and finally producing a final report on the disclosure.

The Citizens’ Representative will report to:

  • the employee who made the disclosure, and,
  • the chief executive of the department or public body concerned.

In the case of a disclosure involving the chief executive, a report will follow to the responsible minister.

The Citizens’ Representative may decline to investigate or may stop the investigation of certain disclosures for reasons set out in Section 15 of the Act, including:

  1. the subject matter of the disclosure would be more appropriately dealt with, initially or completely, according to a procedure provided for by another Act;
  2. the disclosure is frivolous or vexatious, or has not been made in good faith or does not deal with a sufficiently serious subject matter;
  3. the disclosure does not provide adequate particulars;
  4. there is another valid reason for not investigating the disclosure.

If an investigation is not undertaken, written reasons will be provided to the discloser. In certain cases, a referral to another agency (such as law enforcement or the Auditor General) may take place.

The secrecy and privacy provisions of the Citizens’ Representative Act apply to the conduct of a public interest disclosure investigation. Both the Citizens’ Representative and his employees are immune from testifying in court or before tribunals. Investigations are conducted privately and documents held by the Citizens’ Representative are protected from disclosure by both the Citizens’ Representative Act and the Access to Information and Protection of Privacy Act.

Every effort will be made to protect the identity of the discloser, to the extent possible, when conducting an investigation.

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