Whistleblower Linda Merk has lost thousands of dollars, been without her job for four years, and fought at four levels of court -- but a win in the Supreme Court of Canada Thursday had her smiling.
"We couldn't be happier. It's been a long, hard four years for all of us," the 50-year-old Regina woman told reporters as she celebrated with friends, family and her lawyers.
"When you try to do something morally right, and all the way through you keep getting hit in the face with it, you wonder, 'what's going on in the world?' ... We've finally been successful."
Merk was fired from her job as manager and bookkeeper for the Iron Workers Union, Local 771, on Nov. 5, 2001 after raising concerns that two supervisors were being paid more than once for the same expenses. Merk mounted the first legal test of Saskatchewan's whistleblower law, under the Labour Standards Act, which makes it an offence to fire an employee for reporting wrongdoing.
In its first decision on a whistleblowing law, the country's top court ruled 6-1 in her favor. It convicted the union and sent the case back to provincial court for sentencing and to consider Merk's claim for compensation. The offence carries fines of up to $2,000. But Merk is out about $250,000 for four years' wages, and her legal battle cost about $180,000, which family and supporters helped fund.
Merk also wants her job back. "I loved going to work everyday," she said, adding it was "like a family."
The union's lawyer did not respond to an interview request.
Labour Minister Deb Higgins said the government, which amended the whistleblower law in May in light of Merk's case, is pleased with the ruling. "It is very good news for employees in Saskatchewan if they feel there is something that needs reporting that they have that legislation there for them," she said.
Both Merk and her lawyer Roger Lepage hope the groundbreaking case can help others. "If there isn't that protection (for whistleblowing employees), people are not going to come forward, and it's a big cost to society," said Lepage.
The case has repeatedly turned on two issues: what is a lawful authority and when was Merk's job terminated. Although the union executive authorized her firing in September 2001, she wasn't actually terminated until Nov. 5, 2001 after taking her concerns to the union's general president. The province has since changed its law to clarify that a "lawful authority" can indeed include a supervisor.
At provincial court, a judge found union funds were misappropriated, but ruled Merk wasn't terminated for reporting her suspicions to a "lawful authority." The Court of Queen's Bench later reversed that ruling and issued the first successful conviction in Canada under a whistleblowing law. But last year in a 2-1 decision, the Saskatchewan Court of Appeal overruled the lower court, finding Merk's complaint to the union's general president didn't constitute a lawful authority.
But the majority of the Supreme Court accepted a broader definition of lawful authority. "A suitable lawful authority many be found inside as well as outside the employer organization," Justice Ian Binnie wrote.
Binnie noted Merk took her concerns progressively "up the ladder" -- first to her immediate supervisor, then a union trustee responsible for finances, the union's auditor, an investigator appointed by the general president, the general president himself, and finally to police when all else failed.
The court rejected the union's argument that Merk was fired for making her allegations irresponsibly or in bad faith. "Now the truth is here," said Merk.
The two supervisors in question remain with the union. Regina police spokesperson Elizabeth Popowich said it recently concluded a four-year-long investigation and found "there's not evidence to support a criminal charge." She said Thursday's ruling doesn't change that because civil liability isn't the same as criminal.
Merk is still upset she had to hire her own lawyer to enforce a provincial law. Legislative changes passed in May now allow the director of Labor Standards to investigate and issue a decision in cases like Merk's.
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