The following are excerpts from PSIC annual reports, selected because we consider that they have special relevance.
2008 Annual Report (file #15)
Principle: The Act requires us to carefully weigh our role in matters of public policy-making.
Our Office completed a complex investigation into a disclosure first made to the Public Service Integrity Officer (PSIO) under the former Treasury Board Policy on the Disclosure of Information Concerning Wrongdoing in the Workplace. The investigation launched by the PSIO examined serious allegations that a public sector organization had failed to appropriately exercise its delegated ministerial discretion in such a way as to endanger public health and safety. It was also alleged that the approving authority was pressuring employees to render decisions without considering all relevant information available on the subject.
An investigation was completed by the PSIO, resulting in the dismissal of all the allegations of wrongdoing on the basis that the approving authority had exercised its discretion appropriately and that there was no evidence of undue pressure on employees. Judicial review was sought of the PSIO’s decision. The Federal Court of Canada set aside the PSIO’s findings and ordered a new investigation. The PSIO began a new investigation, which was continued by our Office after the Act came into force in April 2007.
A careful analysis of the complex issues raised was required in the context of the new and specific powers given to our Office under the Act. Our legislation gives the Commissioner the discretion to refuse to deal with a disclosure or to cease an investigation when the subject matter of the disclosure or the investigation relates to a matter that results from a “balanced and informed decision-making process on a public policy issue.” It is important to note that the PSIO did not have such authority to rely upon when it was carrying out its investigation of this matter.
After an extended factual and legal analysis, it was decided that our Office was not the appropriate mechanism to address the public policy issues raised in the disclosure.
Of particular importance in making this decision was the fact that the subject matter of the disclosure had previously been raised, considered and debated in the legislative and broader public arenas.
2009 Annual Report (file #38)
Principle: In considering whether to make an application to the Tribunal, the Commissioner must take into account, having regard to all the circumstances relating to a complaint of reprisal, whether it is in the public interest to do so.
This case concerned a disclosure made by four public servants to the Public Service Integrity Officer (PSIO) in 2002. In 2003, the Officer dismissed the allegations of wrongdoing but found that one of the complainants had suffered a reprisal under the former Treasury Board Policy on the Internal Disclosure of Information Concerning Wrongdoing in the Workplace. That Policy was repealed by the coming into force of our Act in 2007, and the PSIO was replaced by our Office. The disclosers applied to the Federal Court of Canada for a judicial review of the original decision, and in 2005, the Court ordered the PSIO to reconsider his findings.
On April 15, 2007 when our Office was established, we continued this process in accordance with the specific transition provisions of the Act.
We faced the complex task of reviewing decisions that had been made under the former Policy and applying the Act’s new reprisal regime to facts and circumstances that occurred before it came into force. The Act provides for the transition of disclosure investigations commenced under the former Policy, but it is silent with respect to reprisals.
This is relevant, because the Act differs from the former Policy in how it deals with reprisal complaints. For example, the PSIO had the flexibility to decide whether reprisals were taken and to make recommendations to Chief Executives for corrective measures. Under the Act, only the Public Servants Disclosure Protection Tribunal can adjudicate a complaint, upon application by the Commissioner, and order corrective measures and disciplinary sanctions.
Further, the Policy did not specify any particular standard of proof in determining whether reprisals were taken. Under the current regime, there must be reasonable grounds for believing that a reprisal occurred and that having regard to all the circumstances, it would be in the public interest to refer the matter to the Tribunal.
At the conclusion of the process, our choices under the Act were limited to referring the complaint to the Tribunal or dismissing it. We determined, having regard to all circumstances, that it was not in the public interest for the Tribunal to hear this reprisal complaint. We also determined that rights had previously accrued to the parties which could now be adversely affected if we referred this matter to the Tribunal.
Further, there was a need for finality in this matter. We found that the reprisal complaint was appropriately and adequately dealt with under the former Policy by the PSIO. The only outstanding issue arising from the PSIO’s findings was the implementation of recommendations on corrective measures. We encouraged the parties to consider mediation and offered our assistance to them in this regard.
The Integrity Commissioner is required to publish annual reports with statistics on the operations of her office, including the numbers of disclosures, investigations, and founded cases of wrongdoing.