Strengthening Whistleblower Protection: The Report of the Public Servants Disclosure Protection Act Review Task Force

The Public Servants Disclosure Protection Act Review Task Force

On November 29, 2022, the President of the Treasury Board appointed an external task force to explore possible revisions to the PSDPA. It was charged with considering opportunities to:

• enhance the federal disclosure process
• strengthen protections and supports for public servants who come forward to disclose wrongdoing

We were also mandated to prepare a report to the President with our recommendations on possible amendments to the PSDPA and on improvements to its administration and operation.^{Footnote 3} The President directed, and we agreed, that this report would be made public. Task force members included the following:

• a senior officer for internal disclosure within the Government of Canada
• three academics
• two bargaining agent representatives
• two individuals who have experience in disclosure regimes in Canadian provincial or municipal jurisdictions

Task force members were as follows:

• Co-Chair: Suzanne Craig, Integrity Commissioner, City of Vaughan, Ontario
• Co-Chair: Mary McFadyen, former Ombudsman and Public Interest Disclosure Commissioner for the Province of Saskatchewan
• Professor Basil Alexander, Legal Academic, University of New Brunswick (until June 30, 2025) and Toronto Metropolitan University (as of July 1, 2025)
• Professor Geneviève Cartier (member until October 2023), Faculty of Law, Université de Sherbrooke – left to support the Public Inquiry into Foreign Interference
• Scott Chamberlain, Director of Labour Relations and General Counsel, Association of Canadian Financial Officers
• Raymond Kunze, former Ombuds and Senior Officer for Internal Disclosure, Immigration and Refugee Board of Canada
• Dr. Stephen Maguire, Adjunct Research Professor in the Ethics and Public Affairs Doctoral Program and Executive Director of the Centre on Values and Ethics at Carleton University
• David Yazbeck, General Counsel and Corporate Secretary, Association of Justice Counsel

Profiles for each task force member are provided in Appendix B.

Approach to the review

Our review of the PSDPA considered a variety of perspectives on key aspects of the legislation and its administration across the federal government. Supported by a team from the Office of the Chief Human Resources Officer, TBS, we:

• received 57 submissions from stakeholders who were internal and external to government
• held follow-up meetings with stakeholders
• conducted an online survey that gained perspectives from more than 3,500 current public servants
• drew from research and policy documents on whistleblower protection in Canada and internationally

In conducting our review, we considered the following:

• material from OGGO’s 2017 review of the PSDPA
• the Proposal of the Public Sector Integrity Commissioner for Legislative Amendments | Office of the Public Sector Integrity Commissioner of Canada
• the Private Member’s Bill C‑290: An Act to amend the Public Servants Disclosure Protection Act
• national and international research on whistleblowing regimes
• data from the Government of Canada’s Public Service Employee Surveys
• direct consultation with a wide range of stakeholders and interested parties

Our consultation processes enabled key stakeholders to provide their views, expertise and experiences regarding the federal disclosure regime and suggest improvements. Our consultations have also allowed us to gather valuable insights and a wide range of perspectives for our recommendations.

Through regular virtual and in-person meetings from March 2023 to March 2025, task force members carefully reviewed the information provided from consultations and other sources. We conducted an in-depth review of the issues and worked closely on the recommendations in this report. All task force members had the opportunity to express their views as we worked toward consensus on decisions and recommendations. Dissenting opinions, as well as alternative stakeholder views, are reflected throughout this report.

Stakeholder consultations

Through a comprehensive consultation process, we engaged with stakeholders inside and outside the federal public sector to:

• identify ways to improve the federal disclosure process
• strengthen protections against reprisal
• provide support to those involved in reporting wrongdoing

We also looked for ways to improve:

• the culture of the public sector to positively impact public servants who consider disclosing wrongdoing
• the management of the disclosure and complaints processes

The consultation process was held between October 2023 and June 2024 and had two phases. In the first phase, we made targeted requests for written submissions to specific internal and external stakeholders who had knowledge and expertise in whistleblower regimes, ethics and related topics. We started with stakeholders and witnesses who were involved in the OGGO 2017 review and bargaining agents. We then consulted on which other stakeholders to include, such as members of the internal disclosure community, scholars and experts. We asked all stakeholders for written feedback through a questionnaire^{Footnote 4} that covered our three thematic areas, with stakeholders being invited to provide information on the PSDPA’s strengths, weaknesses, issues and areas for improvement. We received 57 written submissions,^{Footnote 5} which provided critical information for our consideration.

We sent requests for submissions to the following stakeholder groups as part of the first phase of consultations:

The Public Servants Disclosure Protection Act

The PSDPA came into force in 2007 to:

• provide federal public servants and others with protected processes for disclosing wrongdoing in Government of Canada workplaces
• protect federal public servants and others from reprisal for making disclosures

The key objectives of the PSDPA are to:

• promote and sustain an ethical workplace culture
• maintain and enhance Canadians’ trust in the integrity of the public sector

The PSDPA requires the deputy head or executive officer of a federal organization to establish an internal disclosure process that meets certain requirements, such as ensuring that disclosure information is kept confidential.

The PSDPA created two new independent bodies to implement and administer the disclosure process:

• the Office of the Public Sector Integrity Commissioner of Canada (PSIC)
• the Public Servants Disclosure Protection Tribunal (the Tribunal)

As an Agent of Parliament, the PSIC:

• provides an independent and confidential process for receiving and investigating disclosures of wrongdoing
• reports founded cases of wrongdoing to Parliament and makes recommendations to chief executives on corrective measures
• provides a mechanism for filing complaints of reprisal

Reprisal complaints may be handled through conciliation and by referring cases to the Tribunal. The Tribunal is a quasi-judicial body that hears reprisal complaints referred by the PSIC. It has the power to grant remedies to people who disclosed wrongdoing and were subject to reprisal, and it can order disciplinary action against people who took a reprisal.

The fundamental underlying principles of the PSDPA include:

• integrity of public servants and public sector institutions
• protecting disclosers, including confidentiality
• duty of loyalty
• freedom of expression
• transparency

These principles often overlap and can sometimes conflict with each other, for example, transparency and the need for confidentiality. There is also a tension between the duty of loyalty and freedom of expression. The PDSPA strives to balance these principles.

The PSDPA also establishes mechanisms for dealing with wrongdoing in or relating to the federal public sector.^{Footnote 7} It functions within the framework of federal public sector legislation, policy and federal jurisdictional boundaries. Within this context, disclosure procedures and other elements of the PSDPA work in conjunction with existing employer–employee relationships. For example:

• if a public servant faces alleged reprisal, they can make a formal complaint to the PSIC or use a grievance process
• the Royal Canadian Mounted Police (RCMP) has a unique process for handling alleged reprisals to reconcile the PSDPA with the Royal Canadian Mounted Police Act
• corrective action taken against a public servant found to have committed wrongdoing is handled under public sector legislation (for example, the Federal Public Sector Labour Relations Act)

Under the PSDPA, public servants can disclose wrongdoing internally to their supervisor, or their organization’s designated senior officer for internal disclosure, or externally to the PSIC.

Unlike other recourse mechanisms, such as the grievance process, public servants do not have to use their organization’s internal disclosure process first before going to the PSIC. Civilian employees and RCMP members can also disclose wrongdoing either internally or to the PSIC; however, there are specific provisions in the PSDPA regarding reprisal complaints and the Royal Canadian Mounted Police Act.

Non-public servants, including contractors with federal government organizations, and former public servants can report possible wrongdoing in or related to the public sector to the PSIC, who may decide to investigate. The PSIC can also investigate disclosures that are received anonymously. Figure 1 outlines the process that the office of the PSIC uses when it receives a disclosure of wrongdoing.

Figure 1 - Text version

Figure 1 illustrates how a disclosure of wrongdoing is processed at the Office of the Public Sector Integrity Commissioner of Canada (PSIC).

Disclosure of wrongdoing received

• Disclosures can be submitted through the PSIC website, in person, by mail or fax. They are considered secure means of transmission.

Case admissibility review

• 90 days to complete based on internal service standards.

Question

• Could potentially be wrongdoing under the Public Servants Disclosure Protection Act?

If no, the discloser is advised and the file is closed.

If yes, there is an investigation:

• targeted service standard: one year to complete
• PSIC conducts administrative investigations
• any criminal activities may be referred to the proper policing authority

Question

• Commissioner finds wrongdoing?

If no, the parties are advised and the file is closed.

If yes, a case report is tabled in Parliament:

• must be tabled in Parliament 60 days following the Commissioner’s finding of wrongdoing
• prior to tabling, the chef executive is given an opportunity to comment and respond to the Commissioner’s recommendations

During the case admissibility review

• All information provided in the disclosure is thoroughly reviewed.
• The nature of the allegations, discretionary factors and restrictions under the Act are taken into consideration when deciding whether or not to investigate.

During the investigation stage

• PSIC investigator gathers evidence and speaks to witnesses.
• The right to procedural fairness and natural justice of all persons involved in investigations are respected throughout the investigation process.
• In founded cases, a preliminary investigation report is shared with all affected parties, including the organization’s chief executive, for their comments and any additional information.
• Investigator finalizes report and makes recommendations to Commissioner for decision.

Defining wrongdoing

A central aim of the PSDPA is to promote public confidence in the integrity of public servants and institutions by providing ways to disclose wrongdoing. To achieve this goal, it’s important to clearly define what counts as wrongdoing, and it is vital that the PSDPA’s definition of wrongdoing be clear, sufficiently flexible and balanced. The task force considered whether the definition of wrongdoing in the PSDPA should be expanded to include a broader range of misconduct.

Wrongdoing under the PSDPA, section 8, is defined as the following:

• “(a) a contravention of any Act of Parliament or of the legislature of a province, or of any regulations made under any such Act, other than a contravention of section 19 of this Act;
• “(b) a misuse of public funds or a public asset;
• “(c) a gross mismanagement in the public sector;
• “(d) 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 a public servant;
• “(e) a serious breach of a code of conduct established under section 5 or 6; and
• “(f) knowingly directing or counselling a person to commit a wrongdoing set out in any of the paragraphs (a) to (e).”

Stakeholders had a range of views on whether the current definition is balanced or needs to be broadened, as recommended in the 2017 OGGO report and proposed in Private Member’s Bill C-290: An Act to amend the Public Servants Disclosure Protection Act.

Some stakeholders suggested that the definition is too narrow and should be broadened to include more types of misconduct. They noted that many instances of bad behaviour disclosed as wrongdoing under the PSDPA were not investigated because they didn’t fit the definition of wrongdoing, and they weren’t investigated or addressed under other processes. Bill C‑290 proposes removing qualifiers such as “gross” and “serious” from the definition of wrongdoing. However, most public servants who administer the PSDPA oppose this widening of the definition. They expressed concerns that it could become too broad, leading to more investigations that would require too many resources. Their opinion was that there were other recourse mechanisms available to deal with misconduct that doesn’t fall under the PSDPA.

Supporters of an expanded definition of wrongdoing pointed to a few other international whistleblower regimes that take a broader approach, such as the European Union’s whistleblower protection directive. We heard concerns that the current definition might make some whistleblowers feel that their disclosure won’t be accepted and that this represents a lost opportunity to promote good governance.

Most public servants we interviewed who are responsible for administering the PSDPA in their organization indicated that the current definition of wrongdoing is sufficiently broad. They argued that lowering the threshold could be unduly burdensome, dilute the perceived seriousness of wrongdoing, and would slow the response of federal government organizations. Expanding the definition, particularly by simply removing qualifiers, could significantly increase the workload of the PSIC, the Tribunal and those conducting internal investigations, leading to a significant increase in required resources. Public servants also expressed concern that widening the scope of the definition so broadly could:

• result in the investigation of a significant number of matters that could be more appropriately addressed through other recourse mechanisms
• reduce managers’ ability to take early or preventive action because a senior officer for internal disclosure cannot share information made in a disclosure under the PSDPA if that information could identify the discloser

We also heard that issues should be addressed at the lowest possible level to reduce conflict and stress for everyone involved.

In addition to the debate on lowering the threshold of wrongdoing, we heard that there may be specific gaps in the definition of wrongdoing. Stakeholders suggested adding the following to the definition:

• knowingly adopting misleading accounting practices
• circumventing systems of internal control
• committing and/or concealing fraud
• apparent and/or real conflict of interest

We were also asked to consider whether the definition of wrongdoing should include technological advancements that could create new opportunities for wrongdoing, such as cybercrime that uses artificial intelligence.

Individually, members of the task force had differing views on whether the definition could be improved. However, we agreed that the PSDPA’s current definition of wrongdoing is generally appropriate in scope. It is important to recall that the PSDPA was not created to deal with all instances of misconduct but was meant to address serious misconduct and mismanagement that could undermine trust in public institutions and the federal public sector. Not all misconduct amounts to a wrongdoing under the PSDPA, but misconduct that doesn’t meet the statutory definition of wrongdoing shouldn’t be ignored. Such misconduct should be addressed and resolved by other means, which is why having other recourse mechanisms available to public servants is essential. In Part 3 of this report, we discuss how to improve support for public servants in accessing other recourse mechanisms.

Stakeholders generally agreed that more clarity is needed to support senior officers for internal disclosure, potential disclosers and others in interpreting the definition of wrongdoing. Some public servants responsible for administering the PSDPA indicated that the current definition in the PSDPA isn’t clear enough to distinguish wrongdoing from other workplace issues. They wanted to see clearer distinctions between the types of wrongdoing.

Stakeholders also noted that the definition of wrongdoing and its subtypes can be interpreted in many ways, leading to inconsistent application of the PSDPA across federal government organizations. We heard that this inconsistent treatment can:

• result in frustration for public servants who are referred to another recourse mechanism
• contribute to a sense that individuals should be using multiple avenues of redress

It should be the employer’s responsibility to help employees understand their options in what can be a complex array of recourse avenues.

Some stakeholders sought clear definitions and examples for each type of wrongdoing. They suggested that this could be done through amendments to the PSDPA or through new policy or guidance documents. In either case, they indicated that additional resources are needed to support those involved in internal disclosure processes, including those thinking about making a disclosure and those accused of wrongdoing. In addition, stakeholders indicated that misconduct by management is especially serious, even if it is relatively minor, because it can significantly affect employee perceptions and morale.

A consistent application of the definition of wrongdoing can be drawn from the following:

• existing jurisprudence
• TBS’s Serious Breach and Gross Mismanagement guidance
• communication products of the Office of the PSIC
• the PSIC’s policies and procedures for applying the definition of wrongdoing, including:
  • Directive on Disclosures Assessing the Importance of Subject Matter
  • Policy on Complaints of Reprisal Arising from Harassment or Workplace Grievances

Although we do not propose changing the scope of wrongdoing in the PSDPA, we do recommend issuing additional guidance to clarify the definition of wrongdoing for consistent implementation across the public sector. We also believe that for any misconduct that is reported but not investigated under the PSDPA, there should be a mechanism to ensure that it does not go unaddressed. Many public servants voiced this concern during our review of the PSDPA.

We acknowledge the complexity of referring disclosers to different recourse mechanisms,^{Footnote 8} but it’s important to prevent reports from being overlooked and to assure disclosers that the matters they report on will be addressed. In addition, those who advise disclosers on recourse mechanisms must always maintain the confidentiality of disclosure-related information, and they should assure disclosers that the PSDPA’s protections remain in place even if allegations don’t meet the definition of wrongdoing under the Act.

Recommendation 1

We recommend that the government:

• provide clear guidance (including examples) on what constitutes wrongdoing under the Public Servants Disclosure Protection Act (PSDPA)
• establish a process for matters that do not meet the definition of wrongdoing under the PSDPA so that all issues are addressed
• provide clarity on the use of discretion in whether to proceed with a wrongdoing investigation, given the actions and circumstances involved and the alleged wrongdoer’s level or role

Who can make a protected disclosure?

One purpose of the PSDPA is to assure all public servants who come forward to make a disclosure of wrongdoing that they will be protected from reprisal. The task force considered whether the following changes should be made:

• expanding the coverage of protected disclosures to all federal government organizations
• removing the requirement that disclosures be made in “good faith”
• explicitly affirming that non-public servants can make protected disclosures
• clarifying that investigations can continue if a discloser leaves the public sector or moves to another federal government organization
• adding a duty to report

Disclosure processes

Under the PSDPA, public servants have three ways to make a protected disclosure of wrongdoing:

1. to their supervisor
2. to their organization’s designated senior officer for internal disclosure
3. to the PSIC

Public servants from organizations that are too small to have an internal disclosure process can make protected disclosures to the PSIC.

We considered the following:

• how to ensure procedural fairness in spite of inconsistency across the disclosure regime, especially for disclosures that are internal to organizations
• whether the PSIC should be able to obtain information from outside the public sector
• ways to address challenges caused by overlapping recourse mechanisms

Some stakeholders argued that there should no longer be internal processes to report wrongdoing and that all disclosures of wrongdoing should be made to the PSIC. The reasons they cited were:

• the PSIC is more neutral
• organizations have disclosure regimes that are less robust than the PSIC’s
• some organizations lack sufficient knowledge, expertise and resources, leading to inconsistent handling of disclosures

We heard from witnesses that some disclosers don’t use internal reporting because the whistleblower’s identity is often revealed through the media or by individuals within the organization during the investigation. Some public servants feel unsafe using internal procedures because they don’t seem to be independent.

Stakeholders mentioned risks associated with conflicts of interest, confidentiality breaches, reprisals and issues being “swept under the rug.” Some argued that:

• organizations may protect their managers
• small organizations lack clarity on reporting mechanisms and support systems
• supervisors who don’t know enough about the PSDPA can compromise evidence and confidentiality
• internal processes could be used to retaliate against managers

We considered these points, and the majority concluded that we did not wish to limit the ways in which public servants can report wrongdoing. They are in the best position to know if reporting internally or externally is better for them, and we heard some examples of organizations where internal reporting seems to work well, particularly when supported by the organization’s leadership and culture.^{Footnote 12} The key is for public servants to have an external option available that doesn’t require exhausting internal options, which the PSDPA does. The PSIC would also need considerable additional resources if it became the sole body for reporting wrongdoing. However, we all agree that internal processes vary in quality and that this inconsistency should be addressed.

Legal assistance

We considered two issues related to providing legal assistance in the context of disclosures of wrongdoing:

• whether the current maximum payments are too low
• whether those cleared of wrongdoing should be reimbursed for legal fees

The PSDPA allows the PSIC to provide access to legal advice for public servants who have been involved in making a disclosure of wrongdoing or complaint of reprisal. It also allows the PSIC to provide legal advice for:

• anyone who is considering providing information to the Commissioner about possible wrongdoing
• anyone who is involved in an investigation of wrongdoing or a proceeding under the PSDPA about alleged reprisal

However, the maximum payment for legal assistance is currently only $1,500 (or up to $3,000 in exceptional cases). We have heard that this amount is insufficient. The current Law Society of Ontario Fee Schedule, for example, lists hourly rates of $190 to $405 for lawyers, depending on their experience.^{Footnote 17} The amount of $1,500 would cover only eight hours of help from the most junior counsel and four hours or fewer for senior counsel. Instead of having a maximum amount being specified in the PSDPA, we recommend increasing the maximum payments for legal fees and reviewing and adjusting them periodically to ensure that legal assistance provides meaningful support to disclosers and others involved in investigations of wrongdoing.

Recommendation 16

We recommend that amounts for legal fees under section 25.1 of the Public Servants Disclosure Protection Act be included in regulations instead of in the Act, and that the maximum amount allowed for legal fees be increased and reviewed periodically.

A related issue is whether public servants alleged to have committed wrongdoing should have their legal costs recovered if they obtained legal assistance to respond to allegations that were unsubstantiated. The Policy on Legal Assistance and Indemnification provides that public servants are indemnified, and their legal costs are covered, for legal claims or actions if they acted in good faith, within their duties, and during their employment. This means that the government may pay their legal fees if they are sued. However, the policy does not cover an internal investigation or an internal administrative recourse mechanism, and PSDPA investigations are internal.

In some cases, public servants have been accused of wrongdoing but, after an investigation, the allegations were determined to be unfounded. We have also heard that some public servants paid legal fees out of their own pocket to defend themselves, sometimes costing tens of thousands of dollars, and were not reimbursed. In other cases, the alleged wrongdoer was represented by government legal counsel.

This inconsistency should be resolved, possibly by expanding the Policy on Legal Assistance and Indemnification to cover PSDPA investigations. In our view, public servants who act in good faith and within their duties should receive legal assistance if they are wrongly accused of a wrongdoing. However, if the investigation finds that they committed wrongdoing and were not acting in good faith or within their duties, we recommend that the government take action to recover the legal fees from these public servants.

Recommendation 17

We recommend that the Policy on Legal Assistance and Indemnification be revised to cover investigations under the Public Servants Disclosure Protection Act.

A very specific point that was raised by the (former) PSIC during our consultations was that the confidentiality of identities and information provided in relation to a disclosure can be negated by the open court principle, particularly if an individual who is the subject of the disclosure files a judicial review of the PSIC’s decision. That should not happen. Although this issue falls outside the scope of this review, we believe that the Courts should consider the importance of confidentiality to the effective functioning of the whistleblowing regime so that the default in such cases would not be public disclosure, but perhaps to allow applications for disclosure on a non-public basis.

Who is protected from reprisal?

The PSDPA prohibits anyone from taking a reprisal against a public servant or directing that a reprisal be taken against a public servant who:

• has made a disclosure of wrongdoing
• has, in good faith, cooperated in an investigation into a disclosure

The PSDPA also prohibits employers outside the public sector from taking reprisal actions against their employees for providing information to the PSIC about alleged wrongdoing in the public sector.^{Footnote 18}

“You have to be delusional to think you would be protected from serious reprisals if management became aware you were reporting misconduct.”

In our view, the PSDPA fails to protect many people involved in the disclosure process from reprisal. For example, there is no statutory protection for public servants who help the discloser or for those who are mistakenly identified as the discloser, even if they might face reprisal for their role or suspected role. Similarly, public servants who seek advice about disclosing wrongdoing aren’t protected but could still face reprisal to deter them from disclosing.

Senior officers for internal disclosure and others who administer the internal disclosure process or carry out investigations aren’t protected either. We heard that senior officers and investigators have faced negative consequences during some investigations, including reprisals from management for their involvement in conducting or participating in investigations into potential wrongdoing or reporting findings of actual wrongdoing. When investigators are subjected to pressure to avoid making a finding of wrongdoing, it seriously undermines the PSDPA’s objectives and the integrity of the disclosure process.

Anyone seeking advice, making a disclosure or investigating wrongdoing should be protected from reprisal. Extending protections to other public servants who are involved in the process will ensure that they don’t have to fear consequences for disclosing what they know. And, as mentioned in Part 1 of this report, there should be no “good faith” or “reasonable belief” requirements for public servants reporting wrongdoing.

Moreover, we heard that it would be similarly helpful if the definition of “reprisal” explicitly mentioned protection for:

• filing a reprisal complaint
• cooperating in an investigation into a reprisal
• cooperating in an investigation under any other Act of Parliament

Recommendation 18

We recommend that the Public Servants Disclosure Protection Act (PSDPA) be amended to protect public servants from reprisal if they:

• have made a disclosure
• sought advice about making a disclosure
• cooperated in any investigation under the PSDPA, or under any other Act of Parliament
• conducted or were involved in an investigation
• assisted a public servant in making a disclosure
• were mistaken for being a discloser
• declined to participate in a wrongdoing, or
• made a reprisal complaint

What actions constitute a reprisal?

Under the PSDPA, “reprisal” refers to any of the following actions taken against a public servant:

• “(a) a disciplinary measure;
• “(b) the demotion of the public servant;
• “(c) the termination of employment of the public servant, including, in the case of a member of the Royal Canadian Mounted Police, a discharge or dismissal;
• “(d) any measure that adversely affects the employment or working conditions of the public servant; and
• “(e) a threat to take any of the measures referred to in any of paragraphs (a) to (d).”

Through our consultations, we heard that the current definition of “reprisal” in the PSDPA is sufficient, as paragraph (d) covers any action taken that could negatively impact a public servant’s employment or working conditions. However, we also heard that the definition should include specific forms of reprisal that the current definition may not appear to cover. Examples given included:

• harassment
• bullying
• change of work location
• exclusion from organizational and social activities at work
• challenging the credibility of the complainant
• social ostracization

Other examples of possible reprisal included as being unjustified include:

• poor work performance evaluations
• limits to career advancement opportunities
• lack of consideration for assignments, special projects or acting positions
• denial of training opportunities

Bill C‑290, which died on the order paper when the federal election was called on March 23, 2025, had proposed the following list of actions that would constitute a reprisal:

• “(a) a disciplinary measure;
• “(b) their demotion;
• “(c) the termination of their employment, including, in the case of a member of the Royal Canadian Mounted Police, a discharge or dismissal;
• “(d) any measure that adversely affects their employment or working conditions including, but not limited to:
  • “(i) the mandatory assignment or deployment of the public servant,
  • “(ii) any form of reprimand,
  • “(iii) any form of discrimination,
  • “(iv) the infliction of emotional distress,
  • “(v) any act or omission that causes any psychological injury to the public servant;
• “(e) a threat to take any of the measures referred to in any of paragraphs (a) to (d).”

Although most of task force members believe that the current definition is sufficient to cover any actions that could be considered a reprisal, we recognize that Bill C-290 provided additional explicit clarity to the current definition.

Recommendation 19

We recommend that the definition of reprisal be clarified by adding the following [paragraph (d)]:

(d) any measure that adversely affects their employment or working conditions including, but not limited to:

• the mandatory assignment or deployment of the public servant
• any form of reprimand
• any form of discrimination
• the infliction of emotional distress, or
• any act or omission that causes any psychological injury to the public servant

Time limitations for making a complaint of reprisal

A reprisal complaint can be made to the PSIC only within 60 days after the complainant knew or should have known that an act of reprisal had been made against them. The PSIC can extend this period and has 15 days to decide whether to investigate the complaint.

We believe that these time limits are too restrictive. We heard that 60 days does not, in many cases, provide enough time for someone to determine that certain actions are a form of reprisal. Public servants may not know about this recourse or be able to get legal support and gather sufficient evidence within 60 days. In addition, trauma from reprisal may delay reporting. Even those who witness reprisal may be affected; the PSDPA Survey results showed that 63% of respondents who witnessed reprisal found it to be a traumatic experience, as did 66% of those who witnessed serious misconduct. Extending the reporting period would give public servants enough time to consider filing a complaint. Therefore, we believe that extending the period to two years would be appropriate to ensure that those who have suffered reprisals, and those who may have experienced trauma, have enough time to consider their options. This period also aligns with basic limitation periods in other Canadian laws.^{Footnote 19}

Similarly, 15 days might not be enough time for the PSIC to confidently determine whether to investigate a reprisal complaint. It is important for the PSIC to assess these complaints quickly to reduce the risk of further reprisals and allow for other recourse options; however, many stakeholders believe that the current timeline is not sufficient to complete a proper assessment. We believe that extending the period to 30 days would balance timeliness with the thoroughness of assessment.

Recommendation 20

We recommend that the Public Servants Disclosure Protection Act be amended to give public servants two years to report an act of reprisal and that the Public Sector Integrity Commissioner (PSIC) continue to have the power to extend this time limit if the PSIC feels it is appropriate considering the circumstances of the complaint.

Recommendation 21

We recommend that the Public Servants Disclosure Protection Act be amended to give the Public Sector Integrity Commissioner 30 days after a reprisal complaint is received to decide whether to pursue an investigation.

Limiting the public servant to one active mechanism at a time

The PSDPA states that the PSIC must not deal with a complaint of reprisal if it is already being investigated by another body or person under another Act of Parliament or collective agreement. If a public servant files a complaint of reprisal with the PSIC, they can’t use another recourse mechanism to address the same issue until the PSIC process has concluded. If the PSIC believes that another recourse mechanism would be a more appropriate avenue for the complaint, it can refuse to deal with it but must explain why. The time the PSIC takes to consider a complaint doesn’t count toward the deadline for filing a complaint or grievance through another mechanism. Complainants should be informed of these details.

The task force had differing views on whether public servants should be limited to pursuing only one recourse avenue at a time to deal with an issue. This limitation is to prevent “recourse shopping,” where the same complaint is filed through multiple recourse mechanisms in the hope that one or more of them address it. The limitation also avoids having two processes with contradictory or misaligned outcomes. One concern was that public servants could run out of time to pursue a recourse mechanism while waiting for the outcome of another. However, even though multiple mechanisms can be initiated and used when appropriate, ultimately, the issue should be handled through only one mechanism at a time, with the others paused pending the outcome. This is what typically occurs in other situations and often helps to reduce and focus the remaining contentious issues.^{Footnote 20}

If the public servant disagrees with the outcome from one mechanism, they can ask a higher body to review the decision or ask another body if the considerations are different.^{Footnote 21} This approach is more appropriate than using multiple processes at the same time and avoids duplicated effort and potentially contradictory outcomes.

Recommendation 22

We recommend that the Public Servants Disclosure Protection Act be amended to:

• expressly allow public servants to initiate and use multiple mechanisms to address issues, but only one should be actively pursued at a time
• allow the Public Sector Integrity Commissioner to pause a reprisal complaint while another recourse process is ongoing, to maintain jurisdiction and uphold complainant rights

Role and process of the Public Servants Disclosure Protection Tribunal

If the PSIC reviews a reprisal complaint and believes that the allegations could indicate reprisal under the PSDPA, then it starts an investigation. During the investigation, the investigator can recommend to the PSIC that a conciliator be appointed to help settle the issue between the parties. If they reach an agreement, the complaint is dismissed. If the investigation continues and there are reasonable grounds to believe that reprisal has occurred, the PSIC may refer the case to the Tribunal. The PSDPA does not give the PSIC the authority to decide whether the public servant suffered a reprisal; that is currently the role of the Tribunal, which consists of judges of the Federal Court or a superior court of a province.

A complainant also cannot apply directly to the Tribunal if they feel they have been reprised against; they must first go through the PSIC. Figure 2 outlines this process.

Figure 2 - Text version

Figure 2 illustrates how a complaint of reprisal is processed at the Office of the Public Sector Integrity Commissioner of Canada (PSIC).

Complaint of reprisal received

• Complaints can be submitted through the PSIC website, in person, by mail or fax.

Case admissibility review

• 15 days to complete for reprisal complaints as per the Public Servants Disclosure Protection Act.

Question

• Could potentially be reprisal under the Public Servants Disclosure Protection Act?

If no, the complainant is advised and the file is closed.

If yes, there is an investigation:

• targeted service standard: one year to complete
• PSIC conducts administrative investigations
• any criminal activities may be referred to the proper policing authority
• the investigator may recommend conciliation between the parties

Question

• Commissioner has reasonable grounds to believe that a reprisal was taken?

If no, the parties are advised and the file is closed.

If yes, the Commissioner refers the file to the Public Servants Disclosure Protection Tribunal for a hearing and final decision.

During the case admissibility review

• All information provided in the complaint is thoroughly reviewed.
• The nature of the allegations, discretionary factors and restrictions under the Act are taken into consideration when deciding whether or not to investigate.

During the investigation stage

• PSIC investigator gathers evidence and speaks to witnesses.
• The right to procedural fairness and natural justice of all persons involved in investigations are respected throughout the investigation process.
• Preliminary investigation report is shared with all affected parties, including the organization’s chief executive, for their comments and any additional information.
• Investigator finalizes report and makes recommendations to Commissioner for decision.

The Tribunal then determines whether reprisal took place and, if it has, orders an appropriate remedy. This remedy could be:

• reinstating the public servant in their position
• awarding some form of compensation for lost wages
• rescinding any disciplinary action taken
• paying the public servant up to $10,000 for pain and suffering they have experienced

The Tribunal can also order disciplinary action against the person who carried out the reprisal.

Although the PSDPA states that the “proceedings before the Tribunal are to be conducted as informally and expeditiously as the requirements of natural justice and the rules of procedure allow,” (ss. 21(1)), the process in practice is complex, lengthy and legalistic. We heard that one case took 833 days to conclude and that another took 580 days. This is in addition to the time the PSIC took to consider the complaint before it was referred to the Tribunal. The amount of time it takes to complete the process calls into question its expeditiousness, effectiveness and fairness.

To date, the Tribunal has never made a finding of reprisal, and it has dealt with a very limited number of cases over the years. This does not align with a significant number of public servants who indicated in the task force’s survey that they had experienced or witnessed reprisal in their workplace. We believe that the current process for public servants is too onerous, which may make them hesitant to report reprisals. Figure 3 shows the PSIC’s volume of reprisal complaints, investigations, conciliations and cases referred to the Tribunal over the 10 years from 2014 to 2024.

Figure 3 - Text version

	Number of PSIC Reprisal Complaints	Number of Complaints Investigated	Number of Complaints Conciliated	Number of Cases Referred to Tribunal
2014-15	28	10	1	3
2015-16	30	8	0	1
2016-17	31	14	2	0
2017-18	38	9	6	1
2018-19	54	5	3	0
2019-20	52	10	4	0
2020-21	46	19	0	0
2021-22	47	5	1	0
2022-23	49	9	1	1
2023-24	62	17	2	1

Stakeholders also suggested that the PSDPA should include a “reverse onus” provision. This would mean that in cases where the PSIC has found reasonable grounds to believe that reprisal has occurred, the onus of the burden of proof would be on the employer to demonstrate that reprisal did not take place instead of the employee having to prove that it did.

Another issue that stakeholders raised was about the qualifications of Tribunal members. Stakeholders suggested that all members of the Tribunal should have experience and a strong record of enforcing whistleblower protections, understanding public servant and federal public sector realities, ethics rules, or similar accountability laws. The task force believes that members of the Tribunal do not need to be judges of the Federal Court or a superior court of a province.

Through our engagement process, we heard mixed support for amending the PSDPA to allow complainants to go directly to the Tribunal:

• supporters indicated that going directly to the Tribunal would speed up the process
• opponents were concerned that direct access would create a heavy workload and significant cost to a complainant, who may not have the same access to evidence as the PSIC would have when deciding whether to refer a case
• others pointed out that such a change would increase the Tribunal’s workload and likely negatively affect its capacity to handle complaints without additional resources

The Tribunal has no investigation authority or capacity. Allowing direct access to the Tribunal would increase its workload and responsibilities, and the process would be much more lengthy and costly. Direct access would also potentially remove the PSIC from the reprisal process and eliminate the current opportunity for conciliation, although other mediation and settlement opportunities may occur.

Finally, we also heard from stakeholders who felt that the Tribunal should no longer exist, and that following an investigation, the Commissioner should have the ability to make a finding of whether a reprisal took place.

As noted, we heard about various issues regarding the role and responsibilities of the Tribunal. Some of the principles of the Tribunal’s work were expressed as the need for efficient, timely, cost-effective and fair processes that properly redress those who suffer reprisals. With these principles in mind, we believe that making the person who suffered reprisal “whole” and simplifying the process are key. Processes should accordingly focus on human rights, remedies for victims of reprisal, and addressing systemic workplace issues.

While the Tribunal’s lack of activity in reprisal cases may be the result of the lack of referrals from the PSIC’s office, it still leads us to wonder whether the PSIC would be in a better position to handle reprisal complaints from investigation to findings, including interim measures when appropriate, and whether the Tribunal’s role should be removed from the PSDPA. There is a possibility that transferring the responsibility for findings of reprisal may simply result in shifting the challenges with the Tribunal to another administrative body. It is clear that without adequate resources and the ability to thoroughly investigate allegations of reprisal, any adjudicative function within the PSIC’s office would be just as flawed as the current system. The PSIC’s office has the expertise to effectively deal with reprisal complaints but would require an increase in both authorities and resources. The PSIC may also be better suited to making organizational or systemic findings, recommending follow-up actions by federal organizations and reporting on the implementation of such actions. In this situation, it would not be appropriate to give PSIC order-making powers, as having both investigative and adjudicative powers is very difficult to balance.

For individual disciplinary measures, we believe that departments are best positioned to take appropriate action in their workplaces. Various factors and considerations also play into appropriate discipline, which employers may be in a better position to understand and consider.

Regardless, it is important to keep organizations accountable; therefore, if the PSIC is given responsibility for findings of reprisal, the PSIC recommendations and the organization’s follow-up actions should be publicly reported. The PSIC would then have the same investigative process, public reporting and monitoring responsibilities for both disclosure and reprisal processes.

All task force members agree that it is important that PSIC have the power to make interim orders to protect the complainant during the investigative process. We are not unanimous in the view that the Tribunal should be replaced by the PSIC, or that, in that case, the PSIC should not be given order-making power, but there is a clear majority view on both issues.

Recommendation 23

We recommend that the reprisal process be simplified by:

1. removing the Public Servants Disclosure Protection Tribunal from the Public Servants Disclosure Protection Act and giving the Public Sector Integrity Commissioner (PSIC) the authority to investigate and responsibility to make findings about reprisals
2. granting the PSIC authority to order interim measures, as appropriate, to make recommendations to organizations for remedies to the complainant to make the complainant whole, and to make a recommendation to the chief executive to discipline the reprisor, leaving determination of the appropriate discipline to the chief executive
3. giving the PSIC authority to make recommendations to organizations regarding issues to address, including systemic issues
4. requiring chief executives to report to the PSIC on actions taken in response to those recommendations
5. making the PSIC’s investigative and reporting powers for reprisal similar to those used in the disclosure process, including public reporting

Recommendation 24

Whether or not the recommendation to remove the Public Servants Disclosure Protection Tribunal is accepted and implemented, we recommend that the Public Servants Disclosure Protection Act be amended so that in cases where the Public Sector Integrity Commissioner has found reasonable grounds to believe that reprisal has occurred, the onus of the burden of proof will be on the employer to demonstrate that a reprisal did not take place.

Where should complaints of reprisal be submitted?

Public servants can report wrongdoing to either the PSIC or through an internal process, but complaints of reprisal can currently go only to the PSIC.

Some stakeholders suggested that reprisals should also be reported within their organization. They proposed different options, including reporting reprisals to the senior officer for internal disclosure, the chief executive or other senior official, human resources, or the ombud office. Regardless of the recourse mechanism, the person or position being reported to must be impartial, and the internal process must be confidential, safe and respectful. They suggested that, as with the reporting of wrongdoing, public servants should have the choice of using the internal process or going to the PSIC.

We also heard that handling reprisals internally would expedite the process, as it would allow management to address the issue and potentially discipline the person responsible without involving the PSIC and the Tribunal. We heard that this could potentially discourage reprisals and simplify reporting for complainants, as they would not have to use the PSIC and Tribunal processes.

However, we also heard that dealing with reprisals internally could lead to cover-ups or complaints not being handled appropriately so that management and the organization are protected. Although we understand that the current reprisal complaint process is too long and onerous, which we have addressed by recommending the elimination of the Tribunal, we were not convinced that reprisal complaints should be handled internally. Nonetheless, we do understand that measures sometimes need to be taken in the interim to protect a public servant who has filed a complaint, which employers (and the PSIC) should do when appropriate.

In the end, the majority of task force members agreed that only the PSIC should have the authority to receive and investigate reprisal complaints. However, one task force member was of the opinion that if a public sector employee raised the issue of reprisal within their organization, the appropriate authority within the organization should be able to attempt to resolve the matter until the employee makes a formal reprisal complaint to the PSIC.

RCMP reprisal complaints

We also believe that the PSDPA should be amended to allow RCMP members to directly access protections from reprisal enshrined in the PSDPA without first having to exhaust internal remedies. The current requirement causes years of delay before a member can seek a remedy outside the RCMP, potentially leading to irreparable damage from the reprisal. If the requirement to exhaust internal remedies remains, we believe that the time limit in PSDPA should be amended to give complainants a right to file a reprisal complaint with the PSIC within one year from the date that internal remedies have been exhausted, in accordance with the restrictions of the Royal Canadian Mounted Police Act outlined in the PSDPA.

Recommendation 25

We recommend that the Public Servants Disclosure Protection Act (PSDPA) be amended to:

1. give Royal Canadian Mounted Police (RCMP) members a right to file a complaint of reprisal with the Office of the Public Sector Integrity Commissioner of Canada (PSIC) without first exhausting the processes as set out in the Royal Canadian Mounted Police Act as outlined in the PSDPA; and
2. if the requirement to exhaust internal processes first is maintained, RCMP members should have one year to file the complaint with the PSIC from the date the internal remedies have been exhausted

Management’s responsibility to protect public servants from reprisal

Under the PSDPA, chief executives must establish processes for their organizations to protect the identities of people involved in disclosures and keep all related information confidential. Maintaining confidentiality throughout the process is the best way to protect those involved, including disclosers, alleged wrongdoers and witnesses. The internal disclosure process needs to be improved to ensure that clear protocols are in place to protect identities and keep information confidential. This requirement is directly related to the reprisal protection regime, as confidentiality provisions help reduce the risk of reprisals.

Regularly monitoring and evaluating these procedures is integral to protecting those who report wrongdoing. If internal systems are weak, there is fertile ground for reprisals against individuals who disclose wrongdoing. However, the PSDPA does not specifically state that the chief executive has the duty to protect a public servant from reprisal.

We also heard that for the disclosure process to be effective, senior management should be ready to protect those who face reprisal for disclosing wrongdoing. Many stakeholders noted that there is a need for a clear requirement for organizations and their management to protect disclosers and complainants. However, the PSDPA does not explicitly require organizations to protect disclosers or others involved in the disclosure and investigation processes from reprisal. Neither are they required to support those who filed a reprisal complaint with the PSIC. It is also not clear exactly what the protection of disclosers would entail beyond ensuring confidentiality.^{Footnote 22}

Under federal labour law, senior officials, in their role of representing the employer of an organization, have a duty to protect employees and to provide them with a safe working environment.^{Footnote 23}

The task force heard that reprisals, including harassment, should trigger the employer’s duty to protect, with legal consequences if the employer fails in that duty. Reprisals and personal harassment can overlap and include threats, verbal abuse, exclusion from departmental activities and events, false rumours, and barred promotions, creating a toxic environment for whistleblowers. If the organization fails to protect employees from reprisal, including harassment, the employer could be considered to have violated a condition of the employment contract.

We believe that, for internal disclosure to be effective, the PSDPA should require organizations to specifically protect disclosers from reprisal. If reprisals occur, there must be clear internal processes and procedures to protect disclosers as they go through the complaints process. Protections may include the option of reassigning the discloser while the process is ongoing, with their consent, as set out in section 51.1 of the PSDPA. Reassignment without consent could seem like another act of reprisal or make the situation worse.

Recommendation 26

We recommend that the Public Servants Disclosure Protection Act be amended to give organizations an explicit duty to protect public servants from reprisal, including the authority to take pre-emptive steps to protect a discloser from reprisals (such as reassignment, on consent).

Reprisal remedies

Currently, there are only two avenues of the complaint process that can lead to remedies for the victim of a reprisal and to discipline the person responsible: conciliation or the Tribunal.

The conciliation process is started if the PSIC investigator recommends to the Commissioner that a conciliator be appointed to settle the issue. If a settlement is reached, the PSIC must approve it for it to be valid.

The Tribunal can order specific remedies set out in the PSDPA if it determines that reprisal occurred, including reinstating a complainant who was demoted or terminated. Remedies can also include compensation for lost wages and for the pain and suffering caused by the reprisal. In its 2017 report, the OGGO committee recommended that the PSDPA should “provide remedies to whistleblowers to ensure he or she is made whole, giving due consideration to his or her employment status prior to the disclosure.…”^{Footnote 24}

The list of remedies in paragraph 21.7(1) of the PSDPA for public servants who have faced reprisal is quite broad. However, stakeholders indicated that limiting compensation for pain and suffering to $10,000 is insufficient. We also heard that compensation should not be limited to wages but should also specifically include sick leave and other benefits that the public servant may have used to deal with the effect of the reprisal on their mental and physical health. Others suggested that, in addition to reinstating the victim to their previous position, the Tribunal should be able to order that the employee be moved to a comparable position (with their agreement) to avoid further reprisals. As mentioned, we believe that those who have suffered reprisals must be compensated to the level of “making them whole,” including all types of leave, mental health support, legal costs, and compensation for pain and suffering. If the government decides to maintain the Tribunal and its role, this list definitely needs to be updated.

Recommendation 27

We recommend that the Public Servants Disclosure Protection Act be amended to adjust the remedies that can be awarded to a public servant, including compensation and benefits, so that they may be made whole after suffering reprisal.

Accountability

Only 35% of public servants who responded to our survey believe that individuals are held accountable for their actions within their organization, whereas 37% believe that individuals are not held accountable (see Figure 4). A significant number, 28%, did not have an opinion, which in our view could indicate a lack of communication on the part of the organization.

Figure 4 - Text version

Responses	Number of Respondents (Total = 3,493)
Strongly agree	312
Agree	914
Neither Agree nor Disagree	972
Disagree	737
Strongly Disagree	558

To hold people accountable public servants must feel comfortable about raising or reporting concerns; 36% of survey respondents did not feel comfortable enough to raise or report concerns, and another 17% were neutral on the matter.

Reporting is incentivized if employees believe that appropriate action will be taken if they report. Only 31% of respondents, however, believed that difficult situations in their workplace were effectively addressed.

Many survey respondents felt that senior management is not held accountable for misconduct, showing a clear need for change. Accountability at all levels is necessary to:

• have a work culture that is more open
• ensure that misconduct is addressed appropriately
• demonstrate clear consequences for wrongdoers that are made public

To bring about this change, it is essential to:

• cultivate ethical leadership
• be transparent
• publicly report wrongdoing
• intentionally monitor and foster an open and ethical culture

Ethical leadership

“No manager throughout my entire department up to and including the Deputy Head advised me to report the potential wrongdoing. And this after months of raising the issues both verbally and in writing.”

In his submission to the task force, Dr. Paul G. Thomas, Professor Emeritus of Political Studies at the University of Manitoba, noted that leaders at all levels play a critical role in fostering an open culture in their organization and a supportive environment for disclosing wrongdoing. As part of their “Three Pillars of an Ethical Organization” model, Treviño, Hartman and Brown discuss factors that foster an ethical workplace culture.^{Footnote 26} They emphasize the importance of ethical leadership, which includes:

• modelling ethical behaviour
• communicating organizational values
• taking actions to correct and sanction unethical behaviour

Although many factors influence the culture of an organization, ethical leadership is a determinative component of an ethical organization.

The findings of reports commissioned by the Office of the PSIC in 2011^{Footnote 27} and 2015^{Footnote 28} also underscored the need for greater support from senior management to make the disclosure of wrongdoing a normal part of public sector culture. Similarly, our survey respondents indicated that managers’ awareness and support are critical to encouraging employees to disclose serious misconduct, as is knowing that consequences and corrective actions will be taken when serious misconduct occurs.

The Values and Ethics Code for the Public Sector and the PSDPA set out leadership roles and responsibilities to ensure that leaders, at every level, are aware of their duties to:

• promote ethical practices that reflect public sector values
• support the disclosure of wrongdoing

However, it is not enough for leaders to simply be aware of their responsibilities. When asked to describe a culture that supports voicing concerns and reporting serious misconduct, survey respondents noted that senior management must model the behaviour they want to see in their organizations.

“It comes down to trust and having the right leaders in place with the right behaviours. So, I think broadly it’s very important to hire, train and develop leaders at all levels to be trustworthy so that they can improve accountability, address misconduct, and protect staff against reprisal.”

Organizations must promote policies that encourage employees to speak up about issues and actively demonstrate their commitment through their actions. Leaders should openly discuss the importance of ethical conduct and demonstrate a commitment to addressing misconduct. However, only 35% of survey respondents indicated that their organization fully or largely had a culture that supported the reporting of serious misconduct, and 40% reported only slight support or none at all (see Figure 5).

Figure 5 - Text version

Responses	Percentage of Respondents Who Selected Each Response
Fully	13%
Largely	22%
Moderately	26%
Slightly	20%
Not at all	20%

A public servant’s comfort and willingness to disclose wrongdoing depend significantly on whether management shows they are serious about dealing with misconduct. In particular, most survey respondents indicated they would report a colleague’s misconduct to their supervisor if they believed that the supervisor would act on the information and address it appropriately.

As part of the survey, we also wanted to see the difference between what public servants felt should happen in relation to a hypothetical misconduct situation and what they believed would happen. Across four scenarios describing different degrees of misconduct, 96% of respondents believed that action that would be taken was not the remedy they believed should be taken; 17% of respondents thought that no action would be taken.

Respondents believed the consequences for misconduct should be more severe than what they believed would actually occur. This suggests that they do not believe that misconduct is taken as seriously as it should be.

If a supervisor doesn’t act or ignores misconduct, it would likely have a chilling effect on employees’ future willingness to report misconduct and wrongdoing. We believe that there should be clear accountability measures to ensure that leaders fulfill their responsibilities and are held to account when they do not.

We heard from the Association of Professional Executives (APEX) that senior leaders:

• commonly have their own fear of reprisal
• feel a lack of support when reporting serious misconduct
• dread the potential impact of reporting misconduct on their reputation and careers

Many executives felt isolated and unsupported, particularly when facing unfounded allegations. Ethical leadership needs to balance accountability with support for psychological safety throughout the organization.^{Footnote 29}

Recommendation 28

We recommend appropriate measures be adopted to hold chief executives accountable and responsible for the proper implementation of the Public Servants Disclosure Protection Act within their organizations.

Recommendation 29

We recommend that there be mandatory periodic training for managers in the following:

• public sector values and ethics
• ethical leadership
• the promotion of healthy and respectful workplaces
• the promotion of psychologically healthy and safe workplaces
• the various recourse mechanisms
• the Public Servants Disclosure Protection Act

Training and awareness

A lack of awareness and knowledge of the PSDPA is a major barrier to creating an open culture that encourages and supports employees in reporting wrongdoing. We need to promote awareness of the PSDPA in two ways:

1. all public servants should be aware of how wrongdoing is defined, including their options for disclosing wrongdoing and the protections afforded to them under the PSDPA and elsewhere
2. leadership and others who have responsibilities under the PSDPA should know their responsibilities and be aware of best practices for promoting a safe and ethical workplace

Our survey results showed a low level of awareness of the PSDPA, with more than half of respondents indicating that they are not at all familiar (35%) or only slightly familiar (23%) with disclosure processes under the PSDPA. Only 19% of respondents were moderately familiar or extremely familiar with the PSDPA (see Figure 6).

Figure 6 - Text version

Responses	Percentage of Respondents Who Selected Each Response
Extremely Familiar	5%
Moderately Familiar	14%
Somewhat Familiar	22%
Slightly Familiar	23%
Not at all Familiar	35%

“I’ve worked for this organization for 17 years and never heard of the PSDPA, and I’m a manager.”

Even experienced public servants may not know much about the PSDPA or where to find information and advice. Many survey respondents recommended more training and awareness. Our consultations with stakeholders also highlighted the need for training to raise awareness of the PSDPA among all public servants, as recommended in the OGGO committee’s 2017 report and affirmed in The Sound of Silence: Whistleblowing and the Fear of Reprisal (2016) commissioned by the PSIC. Stakeholders also reported the need for training on:

• other recourse mechanisms
• the handling of suspected misconduct
• protections available
• the potential consequences of failing to protect employees and of retaliation

From our survey, 87% of respondents, upon witnessing serious misconduct in the workplace, said they were likely or very likely to discuss the serious misconduct with their supervisors. Given that managers and supervisors are often the first person that employees turn to, they need to know how to:

• immediately refer disclosures to the senior officer for internal disclosure (and inform the employee accordingly)
• keep disclosure-related information confidential
• protect the identities of all parties

Stakeholders understandably felt that training should promote reporting potential and actual wrongdoing as a responsibility and as an honourable act rather than a controversial one, making an important contribution to improving the public sector; we agree with this view. It’s important to emphasize that reporting and acting on wrongdoing are important responsibilities for all employees in creating ethical organizations.

“[The government can make it easier to report] by educating all levels of government on how to support and protect employees who have witnessed unethical behaviour.”

We also heard repeatedly that all levels of leadership, as well as senior officers for internal disclosure and investigators who have responsibilities under the PSDPA, frequently lack knowledge of their responsibilities, best practices and ways to support public servants in the disclosure process. In Part 1 of this report, we discussed the significant inconsistencies in internal disclosure processes across federal government organizations and the problems that can arise as a result. Although some of these inconsistencies stem from an absence of guidance and policy, we also observed a significant need for minimum standardized training to establish a baseline knowledge for those who have responsibilities under the PSDPA.

Stakeholders also indicated that to consistently apply the PSDPA throughout the federal public sector, there needs to be effective onboarding, periodic training, and continuous learning support for senior officers and their teams. They also suggested that mandatory training on the PSDPA for all executives and senior managers could help promote an ethical workplace culture throughout the federal public sector.

“Having an office culture where reporting is encouraged and safe would make it easier.”

In addition to training on the PSDPA, there is a significant need for ethical leadership training to create a healthy and open work culture throughout the public sector. Senior leaders, managers and supervisors are all critical in fostering an open culture in their organization, which is essential for a supportive environment that encourages reporting wrongdoing.^{Footnote 32} Ethical leadership is vital for ethical organizations, and that includes modelling ethical behaviour, communicating organizational values, and taking actions to correct and prevent unethical behaviour. While ethical leadership is important to supervisors, managers and senior leaders, practising ethical leadership is more demanding for senior leaders, and its positive or negative impact is greater and wider.^{Footnote 33}

Stakeholders emphasized the need for more education and training for senior leaders, suggesting that mandatory training should be required for this group to help them create a psychologically safe environment. Our survey results support this view, with respondents highlighting the need for continuous education and training on accountability, trust, confidentiality, professionalism and the importance of protecting whistleblowers. Many also felt that existing training sessions on anti-racism and harassment are superficial and don’t lead to meaningful change. This training should include the following essential components:

• people skills
• conflict management
• handling difficult conversations
• bystander intervention
• ethical leadership

Currently, there is no legislated responsibility for PSDPA training and awareness. Previously, the Office of the Chief Human Resources Officer (OCHRO) led training and awareness efforts, with support from chief executives and senior officers for internal disclosure across the federal public sector, but we were told that those resources have been cut. Many senior officers told us that this approach is not working well, as they feel unsupported and ill-equipped to carry out their responsibilities. We also heard concerns about the current training, understanding and abilities of investigators, and we are unclear about what related processes are in place or their consistency across the federal public sector. Based on this feedback and the findings of The Sound of Silence: Whistleblowing and the Fear of Reprisal (2016) commissioned by the Office of the PSIC, we agree that an integrated training and support regime is needed.^{Footnote 34}

Stakeholders also called for information, training and support on PSDPA functions to be centralized within a single organization. But who should take on this role? Some proposed that the PSIC could be responsible for training public servants and investigators. Currently, the PSIC has no mandate to provide training on the PSDPA, but it does offer online information and resources about its disclosure process, protections from reprisal and investigation reports. It can also play a role in the development of training on the role of that office.

The President of the Treasury Board has a general mandate to disseminate information and guidance on the PSDPA. The TBS website includes information on the disclosure and reprisal complaint processes, as well as guides for senior officers for internal disclosure and annual reporting on the PSDPA. In addition, OCHRO, as part of TBS, is responsible for organizing meetings of the Interdepartmental Network on Internal Disclosure, which is a community of practice and forum for updates and discussions on best practices within the senior officer community.

Based on the significant challenges identified in our research and consultations, we believe that the government should implement specific activities related to training and awareness of the PSDPA and its administration under TBS. We also want to stress the importance of training and awareness in values and ethics, ethical leadership, and the various recourse mechanisms available. Instituting this training will help create a clearer understanding of what it takes to have an open and ethical culture that supports the voicing of concerns and reporting wrongdoing.

Recommendation 33

To ensure effective implementation of the Public Servants Disclosure Protection Act (PSDPA), we recommend the following regarding training and awareness activities:

• all employees should participate in regular training, awareness activities, and management-led discussions on values and ethics, PSDPA processes, and other recourse mechanisms
• all executive and non-executive managers and supervisors should receive regular training and education to ensure that they are aware of their roles under the PSDPA
• there should be key minimum mandatory and standardized training for those who administer PSDPA functions throughout the public sector, including senior officers for internal disclosure, investigators and chief executives

To ensure that Recommendation 33 is followed, the government will need to identify a body to be responsible for developing, implementing, providing and monitoring this training and awareness. Although assigning responsibilities to different bodies can make sense, it can also lead to confusion and less engagement. We do not believe that the PSIC should be responsible for directly implementing PSDPA training because it should remain at arm’s length from federal departments, although its expertise and insights are still useful. However, we also we believe that organizations should be responsible for keeping their employees aware of the points mentioned in this recommendation.

Regarding developing and implementing training, TBS’s role as a central agency in line with the Access to Information Act and Privacy Act model could be enhanced with help from the PSIC. For example, OCHRO and the PSIC could work together to include both central agency expertise and subject matter expertise with training. The Canada School of Public Service could provide training courses on the PSDPA in concert with OCHRO.

As mentioned, we propose that the government clearly identify the bodies responsible for developing, implementing, providing and monitoring this training in line with the Access to Information Act and Privacy Act model to ensure that the appropriate expertise and resourcing is considered for each stage.

Recommendation 34

We recommend that the federal government designate a body (or bodies) to be responsible for each of the following:

• developing and implementing training and awareness activities for chief executives, managers, supervisors and all public servants on the Public Servants Disclosure Protection Act (PSDPA)
• providing training and awareness activities for chief executives, managers, supervisors and all public servants on the PSDPA
• monitoring training and awareness activities for chief executives, managers, supervisors and all public servants on the PSDPA

Recurrent review of the PSDPA

The current five-year review clause, section 54 of the PSDPA, refers to a review five years after the initial coming into force of the PSDPA. This clause is now out of date and should be updated to require that the PSDPA be referred for review every five years after the coming into force of the amendments.

Recommendation 35

We recommend that the Public Servants Disclosure Protection Act (PSDPA) be amended to require the President of the Treasury Board to initiate an independent review of the PSDPA every five years after the coming into force of the amendments related to our recommendations.

Part 1: disclosure of wrongdoing

Recommendation 1: We recommend that the government:

• provide clear guidance (including examples) on what constitutes wrongdoing under the Public Servants Disclosure Protection Act (PSDPA)
• establish a process for matters that do not meet the definition of wrongdoing under the PSDPA so that all issues are addressed
• provide clarity on the use of discretion in whether to proceed with a wrongdoing investigation, given the actions and circumstances involved and the alleged wrongdoer’s level or role

Recommendation 2: We recommend that the definition of public sector in the Public Servants Disclosure Protection Act no longer exclude the Canadian Armed Forces, the Canadian Security Intelligence Service and Communications Security Establishment Canada.

Recommendation 3: We recommend that the phrase “good faith” be removed from the definition of protected disclosure and as a requirement elsewhere in the Public Servants Disclosure Protection Act.

Recommendation 4: We recommend that the Public Servants Disclosure Protection Act (PSDPA) be amended to clarify that:

• the Office of the Public Sector Integrity Commissioner of Canada (PSIC) and internal disclosure processes can accept anonymous disclosures and apply protections from reprisal to the extent possible under the PSDPA, and
• members of the public can report wrongdoing to the PSIC or to a designated point of contact in the subject organization

Recommendation 5: We recommend that the government make it clear that investigations of wrongdoing should continue if the discloser or alleged wrongdoer moves to a different government organization, leaves the public sector or retires.

Recommendation 6: We recommend that the federal government implement routine and other audit mechanisms to ensure that all federal government organizations meet the requirements of the Public Servants Disclosure Protection Act in a consistent manner.

Recommendation 7: We recommend that the federal government redraft the Public Servants Disclosure Protection Act to make it easier to read, understand and administer.

Recommendation 8: We recommend that the Public Servants Disclosure Protection Act be amended to:

• clearly set out the roles and responsibilities of chief executives, senior officers for internal disclosure and supervisors, including for reporting and investigating disclosures of wrongdoing
• include specific requirements on how internal investigations are to be conducted and reported, in a manner that is procedurally fair for all parties

Recommendation 9: We recommend that the Public Servants Disclosure Protection Act be amended to clearly state that the Treasury Board of Canada Secretariat is responsible for developing policies, procedures, and guidance for handling internal disclosures, preventing reprisal, and conducting investigations, for implementation across government organizations.

Recommendation 10: We recommend that the Treasury Board of Canada Secretariat be responsible for developing guidelines and processes for those involved in handling allegations of wrongdoing to address real, apparent or potential conflicts of interest.

Recommendation 11: We recommend that section 34 of the Public Servants Disclosure Protection Act be replaced with a new section to give the Public Sector Integrity Commissioner the power to obtain information from outside the public sector, similar to the powers granted in Part I of the Inquiries Act and subsection 36(1) of the Access to Information Act.

Recommendation 12: We recommend that the Public Servants Disclosure Protection Act give the Public Sector Integrity Commissioner the power to initiate an investigation based on information obtained in the course of a reprisal investigation (as it can for information obtained during a disclosure investigation).

Recommendation 13: We recommend that the Auditor General be given authority to:

• receive, assess and investigate disclosures of alleged wrongdoing concerning the Office of the Public Sector Integrity Commissioner of Canada (PSIC) from former public servants and members of the public
• receive, assess and investigate reprisal complaints from current and former employees of the Office of the PSIC concerning the Office of the PSIC, with all the related powers and duties of the Commissioner

Recommendation 14: We recommend that all federal government organizations designate an office to provide confidential support to employees about the various recourse mechanisms and options available to them.

Recommendation 15: We recommend that the government revise the current harassment complaint management mechanism under the Canada Labour Code to allow for findings of harassment and personal remedies in individual cases to ensure that complaints of harassment are appropriately investigated and addressed.

Recommendation 16: We recommend that amounts for legal fees under section 25.1 of the Public Servants Disclosure Protection Act be included in regulations instead of in the Act, and that the maximum amount allowed for legal fees be increased and reviewed periodically.

Recommendation 17: We recommend that the Policy on Legal Assistance and Indemnification be revised to cover investigations under the Public Servants Disclosure Protection Act.

Part 2: protections from reprisal and remedies

Recommendation 18: We recommend that the Public Servants Disclosure Protection Act (PSDPA) be amended to protect public servants from reprisal if they:

• have made a disclosure
• sought advice about making a disclosure
• cooperated in any investigation under the PSDPA, or cooperated in an investigation under any other Act of Parliament
• conducted or were involved in an investigation
• assisted a public servant in making a disclosure
• were mistaken for being a discloser
• declined to participate in a wrongdoing, or
• made a reprisal complaint

Recommendation 19: We recommend that the definition of reprisal be clarified by adding the following [paragraph (d)]:

(d) any measure that adversely affects their employment or working conditions including, but not limited to:

• the mandatory assignment or deployment of the public servant
• any form of reprimand
• any form of discrimination
• the infliction of emotional distress, or
• any act or omission that causes any psychological injury to the public servant

Recommendation 20: We recommend that the Public Servants Disclosure Protection Act be amended to give public servants two years to report an act of reprisal and that the Public Sector Integrity Commissioner (PSIC) continue to have the power to extend this time limit if the PSIC feels it is appropriate considering the circumstances of the complaint.

Recommendation 21: We recommend that the Public Servants Disclosure Protection Act be amended to give the Public Sector Integrity Commissioner 30 days after a reprisal complaint is received to decide whether to pursue an investigation.

Recommendation 22: We recommend that the Public Servants Disclosure Protection Act be amended to:

• expressly allow public servants to initiate and use multiple mechanisms to address issues, but only one should be actively pursued at a time
• allow the Public Sector Integrity Commissioner to pause a reprisal complaint while another recourse process is ongoing, to maintain jurisdiction and uphold complainant rights

Recommendation 23: We recommend that the reprisal process be simplified by:

1. removing the Public Servants Disclosure Protection Tribunal from the Public Servants Disclosure Protection Act and giving the Public Sector Integrity Commissioner (PSIC) the authority to investigate and responsibility to make findings about reprisals
2. granting the PSIC authority to order interim measures, as appropriate, to make recommendations to organizations for remedies to the complainant to make the complainant whole, and to make a recommendation to the chief executive to discipline the reprisor, leaving determination of the appropriate discipline to the chief executive
3. giving the PSIC authority to make recommendations to organizations regarding issues to address, including systemic issues
4. requiring chief executives to report to the PSIC on actions taken in response to those recommendations
5. making the PSIC’s investigative and reporting powers for reprisal similar to those used in the disclosure process, including public reporting

Recommendation 24: Whether or not the recommendation to remove the Public Servants Disclosure Protection Tribunal is accepted and implemented, we recommend that the Public Servants Disclosure Protection Act be amended so that in cases where the Public Sector Integrity Commissioner has found reasonable grounds to believe that reprisal has occurred, the onus of the burden of proof will be on the employer to demonstrate that a reprisal did not take place.

Recommendation 25: We recommend that the Public Servants Disclosure Protection Act (PSDPA) be amended to:

1. give Royal Canadian Mounted Police (RCMP) members a right to file a complaint of reprisal with the Office of the Public Sector Integrity Commissioner of Canada (PSIC) without first exhausting the processes as set out in the Royal Canadian Mounted Police Act as outlined in the PSDPA; and
2. if the requirement to exhaust internal processes first is maintained, RCMP members should have one year to file the complaint with the PSIC from the date the internal remedies have been exhausted

Recommendation 26: We recommend that the Public Servants Disclosure Protection Act be amended to give organizations an explicit duty to protect public servants from reprisal, including the authority to take pre-emptive steps to protect a discloser from reprisals (such as reassignment, on consent).

Recommendation 27: We recommend that the Public Servants Disclosure Protection Act be amended to adjust the remedies that can be awarded to a public servant, including compensation and benefits, so that they may be made whole after suffering reprisal.

Part 3: culture, administration and operations

Recommendation 28: We recommend appropriate measures be adopted to hold chief executives accountable and responsible for the proper implementation of the Public Servants Disclosure Protection Act within their organizations.

Recommendation 29: We recommend that there be mandatory periodic training for managers in the following:

• public sector values and ethics
• ethical leadership
• the promotion of healthy and respectful workplaces
• the promotion of psychologically healthy and safe workplaces
• the various recourse mechanisms
• the Public Servants Disclosure Protection Act

Recommendation 30: We recommend that all organizations publish information on reported misconduct and wrongdoing, including the actions taken in response, while ensuring that individual privacy is appropriately protected through anonymization or other approaches.

Recommendation 31: We recommend that performance management assessments for senior executives include an assessment of the organization’s ethical culture and be tailored based on the executive’s role and responsibilities.

Recommendation 32: We recommend using the questions from our survey, or other appropriate questions, to assess how well organizations are fostering an ethical culture by including them as questions in the Public Service Employee Survey to address:

• psychological health and safety in the workplace
• ethical culture
• ethical leadership
• organizational commitment

Recommendation 33: To ensure effective implementation of the Public Servants Disclosure Protection Act (PSDPA), we recommend the following regarding training and awareness activities:

• all employees should participate in regular training, awareness activities, and management-led discussions on values and ethics, PSDPA processes, and other recourse mechanisms
• all executive and non-executive managers and supervisors should receive regular training and education to ensure that they are aware of their roles under the PSDPA
• there should be key minimum mandatory and standardized training for those who administer PSDPA functions throughout the public sector, including senior officers for internal disclosure, investigators and chief executives

Recommendation 34: We recommend that the federal government designate a body (or bodies) to be responsible for each of the following:

• developing and implementing training and awareness activities for chief executives, managers, supervisors and all public servants on the Public Servants Disclosure Protection Act (PSDPA)
• providing training and awareness activities for chief executives, managers, supervisors and all public servants on the PSDPA
• monitoring training and awareness activities for chief executives, managers, supervisors and all public servants on the PSDPA

Recommendation 35: We recommend that the Public Servants Disclosure Protection Act (PSDPA) be amended to require the President of the Treasury Board to initiate an independent review of the PSDPA every five years after the coming into force of the amendments related to our recommendations.

Context

1. How are you or your organization involved with or interested in disclosing wrongdoing in the federal workplace? For example, what is your related experience, background, knowledge, or role?

Disclosure processes

2. What should be the key objectives for reporting wrongdoing? How do current mechanisms and processes facilitate or impede such objectives? Are changes required to the definition of wrongdoing?

3. What is your assessment of current mechanisms and processes for reporting wrongdoing? (Refer to Annex for more information.)

4. What are your views on internal departmental processes for reporting and investigating wrongdoing compared to the process for reporting and investigating wrongdoing by the Office of the Public Sector Integrity Commissioner?

5. If you are familiar with the organizations that are excluded under the PSDPA,^{Footnote 35} what are your views on their processes for reporting and investigating wrongdoing? To what extent do these processes provide sufficient accountability and oversight to meet the key objectives associated with reporting of wrongdoing?

6. What is your evaluation of the guidance, protection, and support provided to everyone involved in the reporting process including before and after the process (for example potential reporters of wrongdoing, those who report, alleged wrongdoers, investigators, witnesses/co-operators, executives, managers, and other relevant persons)?

7. How do other recourse mechanisms^{Footnote 36} potentially interact with and affect the reporting and investigating of wrongdoing under the PSDPA? Do you have suggestions to improve that interaction?

8. Are there any changes that could be made to improve transparency and accountability when there is a finding of wrongdoing?

9. Are there any other gaps or issues with the current reporting and investigating of wrongdoing that you wish to add?

Federal public sector organizations

• Administrative Tribunals Support Service of Canada
• Atlantic Canada Opportunities Agency
• Canada Border Services Agency (two representatives)
• Canada Mortgage and Housing Corporation
• Canada Revenue Agency
• Canada School of Public Service
• Canadian Heritage
• Canadian Human Rights Commission
• Canadian Museum of History
• Canadian Nuclear Safety Commission
• Canadian Space Agency
• Communications Security Establishment Canada
• Correctional Service Canada
• Crown-Indigenous Relations and Northern Affairs Canada
• Department of Justice Canada
• Department of Justice Canada and National Research Council Canada (Ombuds)
• Employment and Social Development Canada
• Farm Credit Canada
• Fisheries and Oceans Canada
• Global Affairs Canada
• Health Canada and the Public Health Agency of Canada (two representatives)
• Housing, Infrastructure and Communities Canada
• Immigration, Refugees and Citizenship Canada
• Impact Assessment Agency of Canada
• Indigenous Services Canada
• Innovation, Science and Economic Development Canada
• International Development Research Centre
• Jacques Cartier and Champlain Bridges Incorporated
• National Defence / Canadian Armed Forces (two representatives)
• National Research Council Canada
• National Security and Intelligence Review Agency Secretariat
• Office of the Auditor General of Canada
• Office of the Public Sector Integrity Commissioner of Canada
• Ombuds for 19 small departments and agencies (reporting to Public Services and Procurement Canada)
• Public Services and Procurement Canada
• Public Safety Canada
• Public Service Commission of Canada
• Veterans Affairs Canada

External organizations

• Association of Justice Counsel
• Association of Professional Executives of the Public Service of Canada (APEX)
• British Columbia Ombudsperson
• Centre for Free Expression
• Democracy Watch
• National Police Federation
• Whistleblowing Canada Research Society

Individuals

The task force also received submissions from nine individuals.

Objective

The objective of the task force’s online survey of the Public Servants Disclosure Protection Act (PSDPA) in 2024 was to ensure that those employed in the public sector and members of the public had the opportunity to provide feedback on ways to improve the PSDPA and its administration.

Respondents

The vast majority of respondents were public servants, with a minimal number of responses from former public servants, contractors and members of the public. As a result, this overview is focused on the feedback from over 3,500 public servants (approximately 61% of respondents were women and 31% were men; the remaining respondents selected “another gender” or preferred not to answer the question). Of those who completed the question on equity-seeking groups:

• 25% reported being a member of a racialized group
• 6% reported being an Indigenous person (First Nations, Inuk or Métis)
• 28% reported being a person with a disability
• 15% reported being a member of the 2SLGBTQIA+ community
• 12% reported being a member of another equity-seeking group
• 28% of respondents indicated that they preferred not to answer the question

Survey results

The survey was structured to reflect three themes:

1. disclosure processes
2. protections from reprisal and support
3. organizational culture, administration and operations

An overview of the key findings and suggestions for improvement are provided in the following sections according to theme.