Yukon Public Interest Disclosure Commissioner
News Release: Bill No. 75 the Public Interest Disclosure of Wrongdoing Act
Tue, Nov 04, 2014
I have had the opportunity to review Bill No. 75, the Public Interest Disclosure of Wrongdoing Act (the Act) which was tabled in the Legislative Assembly last Thursday, October 30, 2014. My comments regarding the Act follow.
I acknowledge that my primary concern about the need to provide a means to bind a public entity that is subject to the Act to a reprisal remedy has been addressed through the addition of division 5 of part 4 of the Act (the Arbitration Provisions). In my view, including the Arbitration Provisions will provide public service employees with greater confidence that they will be protected from reprisal when disclosing a wrongdoing.
In my view, there are a few items in the Act that require additional consideration.
1) There is a need to define a time frame in which recommendations made by the Public Interest Disclosure Commissioner (PIDC) and accepted by a public entity to remedy a reprisal will be implemented.
In subsection 34 (1) of the Act, it indicates that a public entity must decide whether to follow any recommendations in a report issued by the PIDC following an investigation of reprisal and provide the PIDC, and any other affected individuals, with written notice of its decision. Subsection 34 (2) of the Act indicates that if the public entity agrees to follow the recommendations “the public entity must take any action required to implement the recommendations as soon as is reasonably practicable.”
Given that the recommendations in a report issued by the PIDC are to remedy a reprisal, the Act should provide some certainty as to when the recommendations must be implemented. Consideration should be given to providing the PIDC with authority to specify the time frame in which the recommendations must be implemented and to refer the matter to arbitration where the time frame is not met.
2) There is a need to modify the public disclosure provision to allow a public service employee to disclose information publicly where he or she does not knowingly violate the law.
Subsection 13 (1) of the Act authorizes an employee to disclose a wrongdoing publicly where he or she “reasonably believes that a matter constitutes an imminent risk of a substantial and specific danger to the life, health or safety of individuals, or to the environment, such that there is insufficient time to make a disclosure under subsection 9 (1)” (which requires disclosure to a supervisor, designated officer, or PIDC). Paragraph 15 (1)(c) indicates that the Act does not authorize disclosure to the public of information that is subject to any restriction created by a Yukon or Federal law.
It is unlikely that an employee will know with certainty when disclosing information publicly in the circumstances described whether he or she is violating the law. Consequently, an employee will, in my view, be prevented from making a public disclosure for fear that a law may be violated in the process and the protections against reprisal in the Act will not apply. Consideration should be given to modifying the requirement in paragraph 15 (1)(c) to a requirement that the employee must not knowingly disclose this information.
3) The potential to limit the powers of the PIDC and the arbitrator through regulation should be removed.
Subsections 56 (f) and (h) include the potential to limit the powers of investigation by the PIDC and the arbitrator granted under the Act through regulation. Consideration should be given to removing this potential.
I also wish to acknowledge the Public Service Commission’s efforts to consult my Office and to keep me informed throughout the development of the Act.
For more information contact:
Diane McLeod-McKay, B.A., J.D.