Disclosure of Wrongdoing (PSDPA)

Procedural fairness has two primary components:

• 1) the right to an unbiased decision-maker and
• 2) the right to be heard.

• Decisions related to wrongdoing (whistleblowing) complaints must be based on a fair and unbiased assessment of the facts and evidence before an unbiased decision-maker. Parties have a right to impartial consideration of all relevant information, free from personal, systemic or institutional biased. The right to be heard can include:
  • The right to notice that a decision is being contemplated
  • The right of a party to know the allegations against them and to respond

Contact our office if you believe your complaint has been processed unfairly.

At the preliminary assessment stage, the Internal Disclosure Office (IDO) is responsible for determining whether to investigate a disclosure of wrongdoing (whistleblowing) complaint.

In this regard, the DND’s Guidelines state that the IDO will normally not investigate if an alternate recourse mechanism is available or has already been accessed. In these circumstances, the procedure for managing disclosures of wrongdoing (whistleblowing) is not intended to replace existing DND or CAF redress and recourse mechanisms, such as the filing of grievances or harassment complaints.

The Guidelines also state that a disclosure may be screened out, or an investigation may be stopped. This may occur as the result of one of the following three circumstances:

• The disclosure refers to any wrongdoing involving a personal rather than the public interest.
• The subject-matter of the disclosure has been investigated or adequately addressed or could be more appropriately addressed according to a procedure that another Act of Parliament has prescribed.
• More appropriate departmental resolution mechanisms are available.

If the IDO thinks a matter should be referred to another recourse mechanism, the IDO will advise the discloser to submit the necessary documentation for that mechanism to the appropriate source. However, the Guidelines indicate that even in these cases, the ADM (Review Services) may retain oversight authority for the resolution of the matter.

The Disclosure of Wrongdoing Guidelines for DND Managers and Employees, and CAF Supervisors and Members states that persons facing allegations generally have a right to be informed about them. Furthermore, the Guidelines stipulate that confidentiality may be limited if an alleged wrongdoer requires certain information to present a proper defence.

What if I am subject to a complaint?

An investigator would review the allegations and evidence and should provide the respondent the opportunity to respond. After having considered this response, the Investigator must determine whether the evidence, analysis, or conclusions contained in the preliminary investigation should be amended. If a new witness is identified during this analysis, any new evidence provided by that witness must be shared with the respondent for additional comments.

As a respondent, you may also request accompaniment during the investigations. These requests are assessed on a case-by-case basis and are not guaranteed. Note: Your accompaniment cannot respond to any questions or make comments.

To assist you in understanding your rights and obligations under the PSDPA, the Public Sector Integrity Commissioner may provide up to $1,500 in regular circumstances or up to $3,000 in exceptional circumstances to pay for legal advice. This will allow you to obtain legal advice from a lawyer of your choice, but only if you cannot obtain legal advice at no cost to you. For more information, review the PSIC’s web page on legal advice.

If the investigation finds wrongdoing, the PSDPA requires the DND to publicize this, along with any corrective action.

Once the ADM (Review Services) or the PSIC reaches a decision, you may challenge this decision through the civilian grievance process or through Judicial Review.

Grievance

The Federal Public Service Labour Relations Act (FPSLRA) defines the grievance process for civilian employees of the Government of Canada, including those who are excluded from bargaining units.

Judicial Review

There is no appeals process for a wrongdoing decision. However, you can apply for a Judicial Review of the findings to the Federal Court of Canada. Keep in mind that a Judicial Review is a formal and sometimes costly process that may not always be the most effective way to address procedural issues.

The Office of the Ombudsman does not have the authority under the PSDPA or any departmental instrument to dismiss, substitute, or modify an ADM (Review Services) decision on wrongdoing.

If compelling circumstances such as time sensitivity, health, security, financial concerns, or other barriers prevent the addressing of concerns via regular channels, you or any member of your family can contact our office. With your written permission, our office can ensure that all relevant parties know about your circumstances. In addition, we can direct you to proper mechanisms for you to begin your complaint process.

To conclude, we do not have the power to change a wrongdoing decision. Our role is to determine whether you have been treated fairly throughout the grievance mechanism you have chosen. In doing so, we can make recommendations if we believe that you were treated unfairly within that process.