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Bill C-290 – An Act to Amend the Public Servants Disclosure Protection Act – Eighth Report

Brief submitted to the Standing Committee on Government Operations and Estimates on September 25, 2023

I would like to thank the Standing Committee on Government Operations and Estimates for its study of Bill C-290, An Act to amend the Public Servants Disclosure Protection Act. This letter is provided as my Office’s response to the Committee's Eighth Report.

Response to Recommendation: That the committee believes, in light of testimony it has received, that there should be a standard by which the Integrity Commissioner receives complaints that is simple and accessible, and that the committee ask that the Integrity Commissioner provide feedback on this report to the committee by letter by the end of September 2023.

I wish to address two aspects in my response: the first being a question of accessibility generally, and the latter being one that concerns the nature of the information that is sought by my Office when a disclosure of wrongdoing or a reprisal complaint is received.

Accessibility

My Office offers secure online forms for individuals looking to make a disclosure of wrongdoing or reprisal complaint. The forms can also be downloaded from our website. However, my Office accepts disclosures and complaints in any format, including oral communications, emails (in exceptional cases) and other types of correspondence. It must be said that the vast majority of disclosures and complaints are filed using our online forms.

Through our activities, we regularly interact with disclosers, reprisal complainants and respondents, as well as witnesses, some of whom are persons with disabilities. My Office generally grants any accommodation requests received by everyone involved in disclosures or complaints. Furthermore, as part of our accessibility plan, we will modify the disclosure and complaint forms to offer anyone the opportunity to make accommodation requests proactively.

My Office also produces a significant volume of written documentation in relation to disclosures and complaints, including decision letters, investigation reports and report summaries. We are committed to ensuring that public servants, and all Canadians, regardless of ability, have access to information about our services. We will conduct an accessibility review of our internal and external templates and communications products, and continue to provide written documentation in alternate formats on request.

Threshold

Subsection 19.1(1) of the Public Servants Disclosure Protection Act (the Act) provides that current and former public servants who have reasonable grounds for believing that reprisal measures were taken against them may submit a reprisal complaint in a form acceptable to my Office. As such, the Committee’s question also raises an important threshold question in regard to what my Office considers to be a complaint filed in a form that is “acceptable.”

Guided by jurisprudence on the subject, we require only a minimum of information from complainants to assess a complaint and determine whether an investigation is warranted. This information must include their contact information, place of work, as well as a short description of the alleged reprisal measures and the related disclosure or participation in an investigation commenced under the Act.

In determining whether to investigate a complaint, I must take into account the definition of reprisal under subsection 2(1) of the Act. This definition includes two essential conditions that must be met in order to constitute a valid complaint. First, current and former public servants need to have been subjected to reprisal measures listed in the definition. Second, the alleged measures need to have been taken because the public servant in question made a disclosure or participated in an investigation. I must also consider the various restrictions and discretionary factors listed under the Act. In this regard, the Federal Court of Appeal held in Agnaou v. Canada (Attorney General), 2015 FCA 29, that I may only decide not to investigate where it is “plain and obvious” that the essential conditions have not been met or that one of the restrictions or discretionary factors apply.

With this in mind, my Office requires from complainants no more than some information to explain the alleged measures they were subjected to and how they participated in an investigation. If no or insufficient information is provided in a complaint, my Office will assist the complainants in providing the details that we need.

Finally, my Office also requires only a minimum of information in disclosures to determine whether an investigation is warranted. However, the courts have recognized that the Commissioner has more discretion under the Act when deciding whether to investigate a disclosure.

Based on the foregoing, I believe that my Office has established an accessible format for disclosers and complainants and set the threshold at the admissibility analysis stage that reflect accurately the requirements of the Act.

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