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Annual Report on the Public Servants Disclosure Protection Act for the 2016 to 2017 Fiscal Year

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From Treasury Board of Canada Secretariat

Table of Contents

Introduction

Section 38.1 of the Public Servants Disclosure Protection Act requires that the Chief Human Resources Officer prepare an annual report for the President of the Treasury Board to table in Parliament. The report must provide information on activities related to the disclosures made in public sector organizations that are subject to the act. This report, the tenth annual report under the act, covers the reporting requirements for the period of April 1, 2016, to March 31, 2017.

The act establishes procedures for handling allegations of wrongdoing and complaints of reprisal, and provides concrete support for grounding public sector culture firmly in values and ethics. For an overview of the act and definitions of key terms used in this report, please refer to Parts F and G of the Appendix.

This report includes information on disclosures made according to internal procedures established under the act, as reported to the Office of the Chief Human Resources Officer (OCHRO) by the senior officers for disclosure or the chief executives of public sector organizations. It does not include disclosures or reprisal complaints made to the Office of the Public Sector Integrity Commissioner of Canada, which the Commissioner reports separately to Parliament.

Reported disclosure activity

At present, 133 active organizations in the federal public sector are subject to the act.Footnote 1 Of these organizations, 113 have informed OCHRO of their senior officer for disclosure appointments made under the act. Pursuant to subsection 10(4) of the act, 20 organizations have declared that they have not established internal disclosure procedures or appointed a senior officer for disclosure because the size of the organization makes it impractical to do so.

Subsection 38.1(1) of the act requires chief executives to prepare a report on the activities related to disclosures made in their organizations and to submit it to the Chief Human Resources Officer within 60 days after the end of every fiscal year. The following is a summary of these reports. Statistics from previous years are included for comparison.

Disclosure activity from the 2011 to 2012 fiscal year to the 2016 to 2017 fiscal year
Disclosure activity 2016 to 2017 2015 to 2016 2014 to 2015 2013 to 2014 2012 to 2013 2011 to 2012

Table 1 Notes

Table 1 Note 1

Disclosures where action, including preliminary analysis, fact-finding and investigation, was taken to determine whether wrongdoing occurred and where that determination was made during the reporting period (as defined in Part G of the Appendix). Does not include disclosures received that have been carried over into the 2017 to 2018 fiscal year.

Return to table 1 note a referrer

Table 1 Note 2

Disclosures received that were immediately rejected or that were immediately referred to another more appropriate recourse mechanism (as defined in Part G of the Appendix).

Return to table 1 note b referrer

Table 1 Note 3

This figure has been amended to reflect files received in the previous year and carried over to the next year that were further determined to include either additional disclosures or fewer disclosures than initially identified. As a result, the figure for “Number of cases carried over on the basis of disclosures made the previous year” has been amended.

Return to table 1 note c referrer

Table 1 Note 4

This figure has been amended to reflect a file received in the 2015 to 2016 fiscal year by the National Energy Board that was carried over and completed in the 2016 to 2017 fiscal year.

Return to table 1 note d referrer

Table 1 Note 5

This figure has been amended to reflect: (i) a file received late in the 2014 to 2015 fiscal year by the Department of National Defence that was carried over and completed early in the 2016 to 2017 fiscal year; and (ii) a file received in the 2015 to 2016 fiscal year by Natural Resources Canada that was carried over and is not yet completed.

Return to table 1 note e referrer

Table 1 Note 6

Figures have been amended to reflect that a file received in the 2013 to 2014 fiscal year by the Royal Canadian Mounted Police (RCMP), initially identified as including 1 disclosure, was further determined to include 13 disclosures. As a result of this determination, amendments have been made to the figures for the 2013 to 2014 fiscal year for “Number of disclosures received under the act,” “Total number of disclosures handled” and “Number of disclosures received that were acted upon.” The figures that appear in the column for the 2014 to 2015 fiscal year have been adjusted accordingly.

Return to table 1 note f referrer

Number of active organizations 133 134 146 147 149 155
Number of general inquiries related to the act 212 198 229 206 198 225
Number of organizations that reported inquiries 36 29 36 31 37 32
Number of disclosures received under the act 209 281 200 194Table 1 note f 207 197
Number of organizations that reported disclosures 22 31 28 28 30 28
Number of referrals resulting from a disclosure made in another public sector organization 1 5 1 0 9 4
Number of cases carried over on the basis of disclosures made the previous year 122Table 1 note c 99Table 1 note c 98 93 100 118
Total number of disclosures handled
(new disclosures, referrals, cases carried over)		 332 385 299 287Table 1 note f 316 319
Number of disclosures received that were acted upon Table 1 note a 98 132Table 1 note d 123 123Table 1 note f 130 186
Number of disclosures received that were not acted uponTable 1 note b 97 122Table 1 note e 85 73 91 47
Number of investigations commenced as a result of disclosures received 61 56 78 39 74 78
Number of disclosures received that led to a finding of wrongdoing 10 7 13 17 18 24
Number of organizations that reported findings of wrongdoing 4 4 4 5 6 10
Number of disclosures received that led to corrective measures 17 31 17 29 40 74
Number of organizations that reported corrective measures 7 7 8 9 13 15
Number of organizations that reported finding systemic problems that gave rise to wrongdoing 0 2 0 3 2 1
Number of organizations that did not disclose information about findings of wrongdoing within 60 days 1 2 2 2 5 3

Statistics on reports of organizational activities related to disclosures made under the act are available in Part A of the Appendix. These statistics provide a snapshot of activity under the act. The following considerations should be noted:

  • Disclosures can be made to a supervisor, a senior officer for disclosure or the Public Sector Integrity Commissioner. The choice of a particular channel for disclosure cannot be construed as a reflection of a lack of trust in other channels.
  • It is difficult to compare statistics across organizations because their cultures vary. Issues may be dealt with through different mechanisms in different organizations.
  • An anonymous disclosure does not meet the definition of a “disclosure made under the act,” so this report does not include situations where information about a possible wrongdoing was provided anonymously.Footnote 2
  • When completing their annual report under the act, organizations are asked to count each allegation of wrongdoing as a separate disclosure and to report it as such in their submission to OCHRO. As a result, the report captures the number of potential incidents of wrongdoing to be investigated, which is a higher number than that of public servants making disclosures.
  • The following are the most common reasons provided by organizations for not acting upon disclosures:
    • The individual making the disclosure was referred to another, more appropriate, recourse mechanism (for example, a grievance procedure) because of the nature of the allegation(s).
    • The disclosure did not meet the definition of wrongdoing under section 8 of the act.
  • Although the Canadian Armed Forces (CAF), the Canadian Security Intelligence Service (CSIS) and Communications Security Establishment Canada (CSEC) are excluded from the act, under section 52, they are required to establish procedures applicable to their organization for the disclosure of wrongdoing, including the protection of persons who disclose wrongdoing. These procedures must, in the opinion of the Treasury Board, be similar to those set out in the act. CSIS’s procedures were approved in December 2009, CSEC’s procedures were approved in June 2011, and the CAF’s procedures were approved in April 2012.

In accordance with paragraph 11(1)(c) of the act, it is the responsibility of organizations to provide public access to information describing findings of wrongdoing and any follow-up action taken. In the 2016 to 2017 fiscal year, four organizations reported disclosures received that led to a finding of wrongdoing. For an overview of the types of findings of wrongdoing reported by the organizations, please refer to Part B of the Appendix.

Review of the Public Servants Disclosure Protection Act

Section 54 of the act requires that the President of the Treasury Board cause to be conducted an independent review of the act, and its administration and operation. From February to June 2017, the House of Commons Standing Committee on Government Operations and Estimates conducted a review of the act. On June 16, 2017, the Ninth Report of the Standing Committee on Government Operations and Estimates, entitled Strengthening the Protection of the Public Interest within the Public Servants Disclosure Protection Act, was presented in the House of Commons.

The review of the act contributes to sustaining and supporting an ethical culture, thereby reinforcing the integrity of the federal public sector.

Appendix: Summary of organizational activity related to disclosures under the Public Servants Disclosure Protection Act

A. Organizations reporting activity under the act in the 2016 to 2017 fiscal year
Organization General inquiries Disclosures Investigations commenced Disclosures that led to
Received Referred Carried over from the 2015 to 2016 fiscal year Acted upon Not acted upon Carried over into the 2017 to 2018 fiscal year Finding of wrongdoing Corrective measures

Table 2 Notes

Table 2 Note 1

This figure reflects the files received in the 2015 to 2016 fiscal year that were carried over and completed in the 2016 to 2017 fiscal year.

Return to table 2 note a referrer

Table 2 Note 2

Upon assessment of the files carried over from the 2015 to 2016, it was determined that these files included fewer disclosures than those initially identified.

Return to table 2 note b referrer

Table 2 Note 3

This figure reflects a file received late in the 2014 to 2015 fiscal year that was carried over and completed early in the 2016 to 2017 fiscal year.

Return to table 2 note c referrer

Table 2 Note 4

This figure reflects a file received in the 2015 to 2016 fiscal year that was carried over and completed in the 2016 to 2017 fiscal year.

Return to table 2 note d referrer

Table 2 Note 5

This figure reflects a file received in the 2015 to 2016 fiscal year that was carried over into the 2016 to 2017 fiscal year and is not yet completed.

Return to table 2 note e referrer

Agriculture and Agri-Food Canada 0 2 0 0 0 1 1 1 0 0
Atlantic Canada Opportunities Agency 2 1 0 0 0 0 1 1 0 0
Atomic Energy of Canada Limited 1 0 0 0 0 0 0 0 0 0
Canada Border Services Agency 16 67 0 41 11 60 37 0 0 2
Canada Mortgage and Housing Corporation 3 1 0 0 1 0 0 1 0 1
Canada Revenue Agency 17 9 0 2 6 5 0 2 0 0
Canadian Centre for Occupational Health and Safety 0 1 0 0 0 1 0 0 0 0
Canadian Food Inspection Agency 40 10 0 8Table 2 note a 18 0 0 1 5 5
Canadian Grain Commission 1 0 0 0 0 0 0 0 0 0
Canadian Heritage 4 0 0 0 0 0 0 0 0 0
Correctional Service Canada 1 8 0 20Table 2 note b 5 9 14 0 3 6
Department of Justice Canada 1 1 0 0 0 1 0 0 0 0
Employment and Social Development Canada 6 7 0 2 9 0 0 1 0 0
Environment and Climate Change Canada 8 4 0 3 3 0 4 2 1 1
Export Development Canada 1 4 0 0 4 0 0 2 0 0
Fisheries and Oceans Canada 4 0 0 0 0 0 0 0 0 0
Global Affairs Canada 2 26 1 0 1 5 21 3 0 0
Health Canada 12 0 0 4 4 0 0 0 0 0
Immigration, Refugees and Citizenship Canada 1 4 0 1 1 3 1 0 0 0
Indigenous and Northern Affairs Canada 2 1 0 0 1 0 0 0 0 0
Infrastructure Canada 1 0 0 4 0 0 4 0 0 0
Innovation, Science and Economic Development Canada 1 0 0 0 0 0 0 0 0 0
Marine Atlantic Inc. 10 0 0 0 0 0 0 0 0 0
National Capital Commission 3 3 0 0 0 3 0 0 0 0
National Defence 3 16 0 2Table 2 note c 9 0 9 16 1 1
National Energy Board 0 0 0 1Table 2 note d 1 0 0 0 0 0
National Research Council Canada 6 0 0 0 0 0 0 0 0 0
Natural Resources Canada 2 1 0 1Table 2 note e 0 0 2 0 0 0
Office of the Chief Electoral Officer 1 0 0 0 0 0 0 0 0 0
Parole Board of Canada 3 0 0 0 0 0 0 0 0 0
Public Health Agency of Canada 7 0 0 0 0 0 0 0 0 0
Public Services and Procurement Canada 3 23 0 12 11 4 20 20 0 1
Royal Canadian Mint 1 0 0 0 0 0 0 0 0 0
Royal Canadian Mounted Police 13 0 0 12 3 0 9 1 0 0
Science and Engineering Research Canada 1 0 0 0 0 0 0 0 0 0
Shared Services Canada 0 0 0 1 1 0 0 0 0 0
Statistical Survey Operations 0 1 0 0 0 1 0 0 0 0
Transport Canada 5 18 0 8 9 4 13 9 0 0
Treasury Board of Canada Secretariat 1 0 0 0 0 0 0 0 0 0
Veterans Affairs Canada 1 1 0 0 0 0 1 1 0 0
VIA Rail Canada Inc. 28 0 0 0 0 0 0 0 0 0
Total 212 209 1 122 98 97 137 61 10 17
B. Organizations that reported disclosures that led to a finding of wrongdoing under the act in the 2016 to 2017 fiscal year
Organization Disclosures that led to
Finding of wrongdoing Corrective measures
Canadian Food Inspection Agency
  • Contravention of any act of Parliament, paragraph 8(a) of the act
  • Gross mismanagement in the public sector, paragraph 8(c) of the act
  • Serious breach of a code of conduct, paragraph 8(e) of the act

Case report
  • Compensating the public servant appropriately for losses incurred
  • Ensuring that the managers found to have committed wrongdoing are adequately advised of, and understand, their responsibilities under the duty to accommodate
Correctional Service Canada
  • Act or omission that creates a substantial and specific danger to the life, health and safety of Canadians or the environment, paragraph 8(d) of the act
  • Serious breach of a code of conduct, paragraph 8(e) of the act

Case report
  • Implementation of appropriate disciplinary measures as determined by management
  • Re-evaluating the capability of the public servant who was found to have committed wrongdoing to resume his or her functions
Environment and Climate Change Canada
  • Serious breach of a code of conduct, paragraph 8(e) of the act

Case report
  • Immediate cessation of the activities that gave rise to the founded acts of wrongdoing
  • Implementation of appropriate disciplinary measures as determined by management
National Defence
  • Serious breach of a code of conduct, paragraph 8(e) of the act

Case report
  • The public servant who was found to have committed wrongdoing was counselled as to the obligations under the National Defence and Canadian Armed Forces Code of Values and Ethics and was required to submit confidential reports for all previous and current outside employment
  • The sick leave granted for the period of the overlap was reversed and attributed to other leave without pay, thus requiring the repayment of the sick leave benefits

C. Organizations that reported no activities related to disclosure in the reporting period

  1. Atlantic Pilotage Authority Canada
  2. Bank of Canada
  3. Business Development Bank of Canada
  4. Canada Council for the Arts
  5. Canada Deposit Insurance Corporation
  6. Canada Development Investment Corporation
  7. Canada Economic Development for Quebec Regions
  8. Canada Post
  9. Canada School of Public Service
  10. Canada Science and Technology Museums Corporation
  11. Canadian Air Transport Security Authority
  12. Canadian Broadcasting Corporation
  13. Canadian Commercial Corporation
  14. Canadian Environmental Assessment Agency
  15. Canadian Institutes of Health Research
  16. Canadian Museum for Human Rights
  17. Canadian Museum of History and Canadian War Museum
  18. Canadian Museum of Nature
  19. Canadian Northern Economic Development Agency
  20. Canadian Nuclear Safety Commission
  21. Canadian Radio-television and Telecommunications Commission
  22. Canadian Space Agency
  23. Canadian Transportation Agency
  24. Civilian Review and Complaints Commission for the RCMP
  25. Courts Administration Service
  26. Defence Construction Canada
  27. Department of Finance Canada
  28. Destination Canada
  29. Energy Supplies Allocation Board
  30. Farm Credit Canada
  31. Farm Products Council of Canada
  32. Federal Bridge Corporation
  33. Federal Economic Development Agency for Southern Ontario
  34. Financial Transactions and Reports Analysis Centre of Canada
  35. Great Lakes Pilotage Authority Canada
  36. Immigration and Refugee Board of Canada
  37. Indian Oil and Gas Canada
  38. International Development Research Centre
  39. International Joint Commission (Canadian Section)
  40. Library and Archives Canada
  41. Military Police Complaints Commission of Canada
  42. National Arts Centre
  43. The National Battlefields Commission
  44. National Gallery of Canada
  45. Northern Pipeline Agency Canada
  46. Office of the Auditor General of Canada
  47. Office of the Commissioner for Federal Judicial Affairs Canada
  48. Office of the Correctional Investigator of Canada
  49. Office of the Information Commissioner of Canada
  50. Office of the Public Sector Integrity Commissioner of Canada
  51. Office of the Registrar of the Supreme Court of Canada
  52. Office of the Secretary to the Governor General
  53. Office of the Superintendent of Bankruptcy Canada
  54. Office of the Superintendent of Financial Institutions Canada
  55. Pacific Pilotage Authority Canada
  56. Parks Canada
  57. Patented Medicine Prices Review Board Canada
  58. PPP Canada
  59. Privy Council Office
  60. Public Prosecution Service of Canada
  61. Public Safety Canada
  62. Public Sector Pension Investment Board
  63. Public Service Commission of Canada
  64. RCMP External Review Committee
  65. Ridley Terminals Inc.
  66. Social Sciences and Humanities Research Council of Canada
  67. Staff of the Non-Public Funds, Canadian Forces
  68. Statistics Canada
  69. Status of Women Canada
  70. Transportation Safety Board of Canada
  71. Veterans Review and Appeal Board
  72. Western Economic Diversification Canada

D. Organizations that do not have a senior officer for disclosure or internal procedures as of the end of the reporting period, pursuant to subsection 10(4) of the act

  1. Administrative Tribunals Support Service of Canada
  2. Canada Lands Company Limited
  3. Canadian Dairy Commission
  4. Canadian Human Rights Commission
  5. Canadian Intergovernmental Conference Secretariat
  6. Canadian Museum of Immigration at Pier 21
  7. Canadian Race Relations Foundation
  8. Copyright Board Canada
  9. Financial Consumer Agency of Canada
  10. Freshwater Fish Marketing Corporation
  11. Laurentian Pilotage Authority Canada
  12. Military Grievances External Review Committee
  13. National Film Board
  14. Office of the Commissioner of Lobbying of Canada
  15. Office of the Commissioner of Official Languages
  16. Office of the Privacy Commissioner of Canada
  17. Polar Knowledge Canada
  18. Security Intelligence Review Committee
  19. Standards Council of Canada
  20. Telefilm Canada

E. Inactive organizations for the purposes of reporting

  1. Canada Emission Reduction Incentives Agency
  2. Canada Employment Insurance Commission
  3. Canada Investment and Savings
  4. Communication Canada
  5. The Jacques-Cartier and Champlain Bridges Inc.
  6. Law Commission of Canada
  7. Soldier Settlement, Director
  8. Truth and Reconciliation Commission
  9. Veterans’ Land Act, Director
  10. Windsor-Detroit Bridge Authority

F. Overview of the Public Servants Disclosure Protection Act

Introduction

Section 38.1 of the Public Servants Disclosure Protection Act requires that the President of the Treasury Board annually table the following information in Parliament for the activities respecting disclosures made in public sector organizations that are subject to the act:

  • number of general inquiries relating to the act
  • number of disclosures received under the act and whether they were acted on
  • number of investigations commenced
  • whether any systemic problems led to wrongdoing
  • any other matter that the Chief Human Resources Officer deems necessary

Key elements of the act

The act encourages public sector employees to come forward if they have reason to believe that serious wrongdoing has taken place, and it provides protections for employees against reprisal when they do come forward. The act thereby enhances organizations’ ability to identify and resolve incidents of wrongdoing, while supporting employees who disclose wrongdoing and protecting them from reprisal.

The act allows anyone to provide the Public Sector Integrity Commissioner with information about possible wrongdoing in the public sector. It also allows employees to make disclosures to their supervisors or to their organization’s designated senior officer for disclosure. The act created the Public Servants Disclosure Protection Tribunal to address alleged cases of reprisal.

The act requires allegations of wrongdoing to be treated with an appropriate degree of confidentiality. Organizations must protect any information they collect about disclosures, including the identities of those making disclosures and of other parties involved, subject to other acts of Parliament and the principles of natural justice and procedural fairness. In this way, the act provides a fair and objective process for those against whom allegations are made.

No information created for the purpose of making a disclosure, or in the course of an investigation into a disclosure or reprisal complaint, can be released in response to a request for information under either the Access to Information Act or the Privacy Act. To ensure transparency in matters of public sector wrongdoings, the Public Servants Disclosure Protection Act requires that chief executives and the Public Sector Integrity Commissioner provide prompt public access to information that describes incidents of wrongdoing found as a result of disclosures made under the act, and any corrective action taken as a result.

The act establishes a procedure for the disclosure of alleged wrongdoing and complaints of reprisal in the public sector. More broadly, the act supports a positive public sector culture that is grounded in values and ethics. It requires that the Government of Canada establish a code of conduct applicable to the entire federal public sector, and that each public sector organization establish a code of conduct consistent with the public sector code.

The act also requires that the President of the Treasury Board promote ethical practices and a positive environment for disclosing wrongdoing in the public sector. Ultimately, the act helps sustain and support an ethical culture, thereby reinforcing the integrity of the federal public sector.

G. Key terms

For the purposes of the Public Servants Disclosure Protection Act, and of this report, public servant means every person employed in the public sector. This includes the deputy heads and chief executives of public sector organizations, but it does not include other Governor in Council appointees (for example, judges and boards of Crown corporations) or parliamentarians and their staff.

The act defines wrongdoing as any of the following actions in, or relating to, the public sector:

  • violation of a federal or provincial law or regulation
  • misuse of public funds or assets
  • gross mismanagement in the public sector
  • serious breach of a code of conduct established under the act
  • act or omission that creates a substantial and specific danger to the life, health and safety of Canadians or the environment
  • knowingly directing or counselling a person to commit a wrongdoing

A protected disclosure is a disclosure that is made in good faith by a public servant under any of the following conditions:

  • in accordance with the act, to the public servant’s immediate supervisor or senior officer for disclosure, or to the Public Sector Integrity Commissioner
  • in the course of a parliamentary proceeding
  • in the course of a procedure established under any other Act of Parliament
  • when lawfully required to do so

Furthermore, anyone can provide information about wrongdoing in the public sector to the Public Sector Integrity Commissioner.

The act defines reprisal as any of the following measures taken against a public servant who has made a protected disclosure or who has, in good faith, cooperated in an investigation into a disclosure:

  • a disciplinary measure
  • demotion of the public servant
  • termination of the employment of the public servant
  • a measure that adversely affects the employment or working conditions of the public servant
  • a threat to do any of those things or to direct a person to do them

Every organization subject to the act is required to establish internal procedures to manage disclosures made in the organization. Organizations that are too small to establish their own internal procedures can request an exception under subsection 10(4) of the act. In this case, disclosures related to the act would be handled directly by the Public Sector Integrity Commissioner.

The senior officer for disclosure is the person appointed in each organization to receive and deal with disclosures made under the act. Senior officers for disclosure have the following key leadership roles for implementing the act in their organizations:

  • providing information, advice and guidance to public servants regarding the organization’s internal disclosure procedures, including the making of disclosures, the conduct of investigations into disclosures, and the handling of disclosures made to supervisors
  • receiving and recording disclosures and reviewing them to establish whether there are sufficient grounds for further action under the act
  • managing investigations into disclosures, including determining whether to deal with a disclosure under the act, initiate an investigation or cease an investigation
  • coordinating handling of a disclosure with the senior officer of another federal public sector organization, if a disclosure or an investigation into a disclosure involves that other organization
  • notifying, in writing, the person(s) who made a disclosure regarding the outcome of any review or investigation into the disclosure and regarding the status of actions taken on the disclosure, as appropriate
  • reporting the findings of investigations, as well as any systemic problems that may give rise to wrongdoing, directly to his or her chief executive, with recommendations for corrective action, if any

Other relevant terms

acting upon a disclosure:
Taking action to determine whether wrongdoing has occurred, including preliminary analysis, fact-finding and investigation. It also means that the determination of whether wrongdoing has occurred was made during the reporting period.
allegation of wrongdoing:
The communication of a potential instance of wrongdoing through a disclosure as defined in section 8 of the act. The allegation must be made in good faith, and the person making it must have reasonable grounds to believe that it is true.
disclosure:
The provision of information by a public servant to his or her immediate supervisor or to a senior officer for disclosure that includes one or more allegations of possible wrongdoing in the public sector, in accordance with section 12 of the act.
general inquiries:
Inquiries about procedures established under the act or about possible wrongdoings, not including actual disclosures.
investigation:
A formal investigation triggered by a disclosure.
not acting upon a disclosure:
Any immediate rejection of the disclosure once it is received, including an immediate referral of the employee making the disclosure to another more appropriate recourse mechanism.

© Her Majesty the Queen in Right of Canada, represented by the President of the Treasury Board, 2017,
ISSN: 2292-0498X

Annual Report on the Public Servants Disclosure Protection Act for the 2016 to 2017 Fiscal Year
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