Federal Court Decision on Subsection 23(1)

The Federal Court rendered a decision on July 29, 2016, that provides a helpful and precedent-setting interpretation of subsection 23(1) of the Public Servants Disclosure Protection Act (the Act), which states that the Commissioner may not deal with a disclosure or commence an investigation if a person of body acting under another Act of Parliament is dealing with the subject matter of the disclosure.

The Court described the objective of the Act as being “designed to enable federal government employees to bring to light wrongdoings in the public sector without fear of reprisal”. The Act is “designed to ensure that Canadians are protected by a lawful, transparent and uncorrupted public service”, and that “the Commissioner has an explicit duty to review investigations and report his findings”. “The public interest comes first, and it is the Commissioner’s responsibility to protect it”.

The Court expanded on the public interest importance of the Act, saying that it “addresses wrongdoings of an order of magnitude that could shake public confidence if not reported and corrected. When the Commissioner is 'dealing with' an allegation of wrongdoing, it is something that, if proven, involves a serious threat to the integrity of the public service”.