In recent years, the lack of accountability and transparency of many public and private organizations has been forcefully brought to the forefront of public attention by the actions of Edward Snowden, Catherine Galliford and numerous others. The actions of these individuals have reignited the discussion over legislative protections for those who disclose the wrongdoings of their employers. To date, legislators continue to struggle with the difficulties presented by trying to balance the competing rights and interests of employers, employees and the general public. The predominant aim of the legislation is to protect employees who report the illegal, immoral or otherwise illegitimate conduct of their employers from reprisal. Doing so encourages employees to assist in suppressing unlawful conduct. The protections offered, of course, cannot be so broad as to give employees a “free pass” to criticize their employers without justification. It may come as a surprise that the protections that have developed for public sector employees are vastly more robust than those afforded to employees in the private sector; the federal government and six provinces have comprehensive legislation that provide extensive protection to civil servant whistleblowers. Most provinces, however, do not have a free-standing protection for private sector employee whistleblowers. Employees in the private sector must therefore turn to patchwork legislation, which tends to focus on specific misconduct and then only to limited channels of communication.
1. Federal Legislation
The broadest protection for whistleblowers is found in the 2004 amendments to the Criminal Code. Akin to the US Sarbanes Oxley Act, section 425.1 of the Criminal Code prohibits employers from retaliating or threatening to take action against employees who provide information to law enforcement officials. While this protection appears vast, there are two important, and severe, limitations to its scope. Firstly, Section 425.1 only applies to employer wrongdoing that constitutes a “criminal offense or otherwise unlawful act”. Secondly, Section 425.1 only protects employees who report to a person “whose duties include the enforcement of federal or provincial law”. So, while employers found in violation of this provision could face five years imprisonment, this provision has rarely been invoked. Similarly, the Canada Labour Code also protects employees, but only with respect to whistleblowers who seek enforcement of, or are participating in proceedings or inquiries under, the Canada Labour Code. Finally, the Competition Act includes protections for those who report potential competition law violations to the Competition Bureau. The Competition Act provides that any person with reasonable grounds to believe that a person has committed (or intends to commit) an offence under the Competition Act may inform the Commissioner of Competition.
2. Provincial Legislation
Most provinces have employment standards, human rights and occupational health and safety legislation that prohibit employers from reprisals against employees who make inquiries or complaints under those pieces of legislation. Such protection is generally limited. By way of illustration, under the Ontario Employment Standards Act, the protection is limited to employees requesting compliance with the ESA, inquiring about rights under the ESA, and filing a complaint with the Ontario Ministry of Labour or an employment standards officer. Ontario’s Occupational Health and Safety Act and Human Rights Code provide employees whistleblowers essentially the same protection, namely protection only with respect to any issue arising under those specific pieces of legislation. Interestingly, the Ontario Environmental Protection Act extends protection to whistleblowing not only with respect to violations under that Act, but also to any violations under other environmental protection legislation, a much broader protection but one that is still limited to misconduct under specific pieces of legislation. It should be noted that the broadest protection for employee whistleblowers can be found in the employment standards legislation of Saskatchewan and New Brunswick. These pieces of legislation deviate from the norm by providing broader protection for employees who report to a lawful authority any activity that is or is likely to result in an offence pursuant to a provincial or federal act.
3. Confidentiality of Whistleblowers
With legislation generally offering only the barest protection from reprisals, it will come as no surprise that employees are often reluctant to openly report employer transgressions. This creates a dilemma that is difficult to solve. A report from an employee who provides insufficient information may be impossible to adequately investigate, while an employee who provides sufficient information may find themselves out of work after hiding behind flimsy legislative protections. Unfortunately, the courts have only exacerbated this issue; last year, the Federal Court of Appeal, in Anderson v IMTT-Quebec Inc., supported the principle that in order for employees to uphold their duty of loyalty and fidelity to the employer, they must exhaust all internal whistleblowing mechanisms before going public. Where an employer does not have a robust and confidential internal whistleblowing mechanism, this could mean that employees’ duty of loyalty and fidelity might require them to report their supervisors’ misconduct to that same supervisor or to that supervisor’s own manager. As employers will no doubt appreciate, this is often unlikely.
4. Employer Whistleblower Policies
As the above will illustrate, having workplace whistleblower policies is an important part of an employer protecting themselves against employee misconduct in the workplace. Such policies will assist employers in uncovering employee-related misconduct in its early stages. This type of protection is particularly valuable in the case of employee fraud and misappropriation. In addition, given the line of reasoning outlined in Anderson v IMTT-Quebec Inc., this further protects employers by creating an internal binding process that must be followed by employee whistleblowers. In order to be effective, whistleblower policies must provide for a transparent and effective process that is broadly communicated to employees. Further, such policies must address confidentiality and other protections that will be afforded to employee whistleblowers as well as a robust mechanism to deal with reprisals and threats of reprisal. Having robust and transparent internal whistleblower policies will protect the employer both in terms of early discovery of wrongdoing by employees and in justifying taking disciplinary action against employees who breach workplace policies or who are guilty of illegal, immoral or otherwise illegitimate conduct.
Many thanks to Alex Lemoine for his assistance in drafting this article.