Third Session, 47th

General Assembly

63 Elizabeth II,

Bill 1

AN ACT RESPECTING PUBLIC INTEREST

DISCLOSURE

Received and Read the First Time ............................................................................

Mar. 12/14

Second Reading ...........................................................................................................

May 12/14

Committee ...........................................................................................

Amendment

May 27/14

Third Reading .....................................................................................................................................

Royal Assent ......................................................................................................................................

HONOURABLE STEVE

KENT

Minister of

Municipal and Intergovernmental Affairs and

Minister Responsible for the Office of Public Engagement

Ordered to be printed by

the Honourable House of Assembly

EXPLANATORY NOTES

This Bill would enact the Public Interest Disclosure and Whistleblower Protection Act . The Bill would

provide a mechanism for the

disclosure and investigation of wrongdoings in or relating to the public service

that an employee believes may be unlawful, dangerous to the public or injurious

to the public interest; and

protect persons who make

disclosures under the Act from reprisals.

A BILL

AN ACT RESPECTING PUBLIC INTEREST DISCLOSURE

Analysis

Short title

Definitions

Purpose

Wrongdoings to which this Act applies

Discipline for wrongdoing

Request for advice

Disclosure by employee

Content of disclosure

Citizens' representative to facilitate

resolution within public service

Disclosure despite other Acts

Where disclosure restrictions continue

to apply

Other obligations to report not affected

Purpose of investigation

Investigation by citizens'

representative

When investigation not required

Conducting an investigation

Investigating other wrongdoings

Citizens' representative's report re

investigation

Notification by department or public

body

Annual report

Protection of employee from reprisal

Complaint to Labour Relations Board

Labour Relations Act applies

False or misleading statement

Protection from liability

Arranging legal advice

Disclosures- frivolous, vexatious, bad

faith

Regulations

RSNL1990 cL-1 Amdt.

Commencement

Be it enacted by the Lieutenant-Governor and

House of Assembly in Legislative Session convened, as follows:

Short title

1. This

Act may be cited as the Public Interest Disclosure

and Whistleblower Protection Act .

Definitions

2. In

this Act

(a) "board" means the Labour Relations Board

appointed under the Labour Relations Act ;

(b) "chief executive" means

(

i) in relation to a department, the deputy minister

of that department, and

(ii) in relation to a public body, the person

generally responsible for the management or operation of that body;

(c) "citizens' representative" means the

Citizens' Representative appointed under the Citizens' Representative Act ;

(d) "commissioner for legislative

standards" means the Commissioner for Legislative Standards appointed

under the House of Assembly Act ;

(e) "department" means a department created

under the Executive Council Act and

includes a branch of the executive government of the province;

(f) "disclosure" means a report in

writing of a wrongdoing which has been committed or is about to be committed,

where that disclosure is made in good faith by an employee in accordance with this

Act;

(g) "employee" means an employee or officer

of the public service;

(h) "public body" means

(

i) a corporation, the ownership of which or a majority

of the shares of which is vested in the Crown,

(ii) a corporation, commission or body, the majority

of the members of which, or a majority of the members of the board of directors

of which, are appointed by

an Act, the Lieutenant-Governor in Council or a minister,

(iii) a school board or school district constituted

or established under the Schools Act,

1997 , including the conseil scolaire

francophone, and

(iv) a corporation, commission or other body designated

by regulation as a public body,

but does not include Memorial University of

Newfoundland;

(i) "public service" means a department

or a public body;

(j) "reprisal" means one or more of the following

measures taken against an employee because the employee has, in good faith, sought

advice about making a disclosure, made a disclosure or cooperated in an investigation

under this Act:

(

i) a disciplinary measure,

(ii) a demotion,

(iii) termination of employment,

(iv) a measure that adversely affects his or her employment

or working conditions, or

(

v) a threat to take any of the measures referred to

in subparagraphs (

i) to (iv); and

(k) "wrongdoing" means a wrongdoing referred

to in

section 4 .

Purpose

3. The

purpose of this Act is to facilitate the disclosure and investigation of

significant and serious matters in or relating to the public service that an

employee believes may be unlawful, dangerous to the public or injurious to the

public interest, and to protect persons who make those disclosures.

Wrongdoings to which

this Act applies

(1) This

Act applies to the following wrongdoings in or relating to the public service:

(

a) an act or omission constituting an offence under

an Act of the Legislature or the Parliament of Canada, or a regulation made under

an Act;

(

b) an act or omission that creates a substantial and

specific danger to the life, health or safety of persons, or to the environment,

other than a danger that is inherent in the performance of the duties or functions

of an employee;

(

c) gross mismanagement, including of public funds

or a public asset; and

(

d) knowingly directing or counselling a person to

commit a wrongdoing described in paragraph (a), (

b) or (c).

(2) This Act applies only in respect of

wrongdoings that occur after the coming into force of this Act.

Discipline for wrongdoing

5. An

employee who commits a wrongdoing is subject to appropriate disciplinary action,

including termination of employment, in addition to and apart from another penalty

provided for by law.

Request for advice

(1) An

employee who is considering making a disclosure may request advice from the citizens'

representative.

(2) The citizens' representative may require the request

for advice to be in writing.

Disclosure by employee

(1) Where

an employee reasonably believes that he or she has information that could show that

a wrongdoing has been committed or is about to be committed, the employee may make

a disclosure to the citizens' representative.

(2) The identity of an employee making a

disclosure shall be kept confidential to the extent permitted by law and

consistent with the need to conduct a proper investigation.

Content of disclosure

8 .

(1) A

disclosure made under

section 7 shall be in writing

and shall be signed by the person making it.

(2) A disclosure shall include the following information,

if known:

(

a) a description of the wrongdoing;

(

b) the name of the person alleged to

(

i) have committed the wrongdoing, or

(ii) be about to commit the wrongdoing;

(

c) the date of the wrongdoing; and

(

d) whether the wrongdoing has already been disclosed

and a response received.

Citizens' representative

to facilitate resolution within public service

9. Where

an employee makes a disclosure to the citizens' representative, the citizens' representative

may take the steps he or she considers appropriate to help resolve the matter within

the public service.

Disclosure despite

other Acts

10. An

employee may make a disclosure under this Act, notwithstanding a provision in another

Act or regulation that prohibits or restricts disclosure of the information.

Where disclosure restrictions

continue to apply

(1) Notwithstanding

section 10 , nothing in this Act authorizes the disclosure

(

a) information or documents which would disclose the

deliberations of the Executive Council or a committee of the Executive Council;

(

b) information or documents that are protected by

solicitor-client privilege.

(2) Where a disclosure involves personal information

or confidential information, the employee shall take reasonable precautions to ensure

that no more information is disclosed than is necessary to make the disclosure.

Other obligations

to report not affected

12. Nothing

in this Act relating to the making of a disclosure is to be construed as affecting

an employee's obligation under another Act or regulation to disclose, report or

otherwise give notice of a matter.

Purpose of investigation

13. The

purpose of an investigation by the citizens' representative into a disclosure of

wrongdoing is to bring the wrongdoing to the attention of the chief executive

of the appropriate department or public body and to recommend the corrective measures

that should be taken, when appropriate.

Investigation by citizens'

representative

(1) The

citizens' representative is responsible for investigating disclosures that he or

she receives under this Act.

(2) An investigation shall be conducted as informally

and expeditiously as possible.

(3) The citizens' representative shall ensure that

the right to procedural fairness and natural justice of all persons involved in

an investigation is respected, including persons making disclosures, witnesses and

persons alleged to be responsible for wrongdoings.

(4) Notwithstanding another provision of this Act,

the citizens' representative shall not investigate a decision, recommendation,

act or omission made or done by an individual in the course of acting as a solicitor

or Crown prosecutor in the public service.

When investigation

not required

(1) The

citizens' representative is not required to investigate a disclosure and the citizens'

representative may cease an investigation if he or she is of the opinion that

(

a) the subject matter of the disclosure would more

appropriately be dealt with, initially or completely, according to a procedure provided

for under another Act;

(

b) the disclosure is frivolous or vexatious, or has

not been made in good faith or does not deal with a sufficiently serious subject

matter;

(

c) so much time has elapsed between the date when

the subject matter of the disclosure arose and the date when the disclosure was

made that investigating it would not serve a useful purpose;

(

d) the disclosure does not provide adequate particulars

about the wrongdoing as required by

section 8 ; or

(

e) there is another valid reason for not investigating

the disclosure.

(2) Where the citizens' representative believes that

a disclosure made to the citizens' representative would be dealt with more appropriately

(

a) the auditor general, the citizens'

representative may refer the matter to the auditor general to be dealt with in accordance

with the Auditor General Act ; or

(

b) the commissioner for legislative standards,

the citizens' representative may refer the matter to the commissioner for legislative

standards to be dealt with in accordance with this Act.

(3) Where a matter is referred to the auditor

general under subsection (2), the reprisal protections set out in this Act apply

to the employee or former employee who made the disclosure to the citizens' representative.

(4) Where a matter is referred to the commissioner

for legislative standards under subsection (2), the commissioner for

legislative standards has and shall exercise the powers and duties of the

citizens representative under this Act.

(5) Where the citizens' representative does not

investigate a disclosure, ceases an investigation or refers a disclosure to the

auditor general or the commissioner for legislative standards under this

section, the citizens' representative shall report on the matter to the

employee who made the disclosure in the manner and at the time the citizens' representative

considers appropriate.

Conducting an investigation

(1) The

citizens' representative and persons employed under the citizens' representative

have the powers and protections provided for in the Citizens' Representative Act when conducting an investigation of a disclosure

under this Act.

(2) Sections 13, 14, 25 to 36 and 40 to 42 of the Citizens' Representative Act apply to the

conduct of an investigation, with the necessary changes.

Investigating other

wrongdoings

17. Where,

during an investigation, the citizens' representative has reason to believe that

another wrongdoing has been committed, the citizens' representative may investigate

that wrongdoing in accordance with this Act.

Citizens' representative's

report re investigation

(1) Upon

completing an investigation, the citizens' representative shall prepare a report

containing his or her findings and any recommendations about the disclosure and

the wrongdoing.

(2) The citizens' representative shall give a copy

of the report to the chief executive of the appropriate department or public

body.

(3) Notwithstanding subsection (2), where the matter

being investigated involves the chief executive, the citizens' representative shall give a copy of the report,

(

a) in the case of a department, to the minister responsible;

(

b) in the case of a public body, to the board of directors

and the minister responsible.

(4) The citizens' representative shall report on

the result of his or her investigation to the employee whose disclosure

initiated the investigation in the manner and at the time the citizens' representative

considers appropriate.

Notification by department

or public body

(1) When

making recommendations, the citizens' representative may request the appropriate

department or public body to notify him or her, within a specified time, of the

steps it has taken or proposes to take to give effect to the recommendations.

(2) Where the citizens' representative believes that

the department or public body has not appropriately followed up on his or her recommendations,

or did not cooperate in the citizens' representative's investigation under this

Act, the citizens' representative may make a report on the matter

(

a) in the case of a department, to the minister responsible;

(

b) in the case of a public body, to the board of directors

and the minister responsible.

Annual report

(1) The

citizens' representative shall make an annual report to the House of Assembly on

the exercise and performance of his or her functions and duties under this Act,

setting out

(

a) the number of inquiries relating to this Act;

(

b) the number of disclosures received and the

number acted on and not acted on;

(

c) the number of investigations commenced under this

Act;

(

d) the number of recommendations the citizens' representative

has made and whether the department or public body has complied with the recommendations;

(

e) whether, in the opinion of the citizens' representative,

there are any systemic problems that give rise to wrongdoings; and

(

f) the recommendations for improvement that the citizens'

representative considers appropriate.

(2) The report shall be given to the Speaker, who shall

table a copy of it in the House of Assembly within 15 days after receiving it if

the Assembly is sitting or, if it is not, the Speaker

shall give a copy of the report to the Clerk of the House of Assembly and after

15 days after receipt of that report by the Clerk it shall be considered to

have been tabled in the House .

(3) Where it is in the public interest to do so, the

citizens' representative may publish a special report relating to a matter within

the scope of the citizens' representative's functions and duties under this Act,

including a report referring to and commenting on a particular matter investigated

by the citizens' representative.

Protection of employee

from reprisal

(1) A

person shall not take a reprisal against an employee or direct that one be taken

against an employee because the employee has, in good faith,

(

a) sought advice about making a disclosure from the

citizens' representative;

(

b) made a disclosure; or

(

c) cooperated in an investigation under this Act.

(2) A person who takes a reprisal against an

employee or directs that one be taken contrary to subsection (1) is subject to

appropriate disciplinary action, including termination of employment, in

addition to and apart from another penalty provided by law.

Complaint to Labour

Relations Board

(1) An

employee or former employee who alleges that a reprisal has been taken against him

or her may file a written complaint with the board.

(2) Where

the board determines that a reprisal has been taken against the complainant contrary

section 21 , the board may order that one or more

of the following measures be taken:

(

a) the complainant be permitted to return to his or

her duties;

(

b) the complainant be reinstated or damages be

paid to him or her, where the board considers that the trust relationship between

the parties cannot be restored;

(

c) compensation be paid to the complainant in an amount

not greater than the remuneration that the board considers would, but for the reprisal,

have been paid to the complainant;

(

d) an amount be paid to the complainant equal to the

expenses and other financial losses that the complainant has incurred as a direct

result of the reprisal;

(

e) the activity that constitutes the reprisal

cease;

(

f) the situation resulting from the reprisal be

rectified; and

(

g) a person do or refrain from doing any thing in

order to remedy a consequence of the reprisal.

Labour Relations Act

applies

23. Sections

15, 15.1, 16, 17.1, 18, 135, 136 and 139 of the Labour Relations Act and the rules of procedure for the board made

under that Act apply to a proceeding before the board under this Act, with the necessary

changes.

False or misleading

statement

(1) A

person shall not knowingly make a false or misleading statement, orally or in writing,

to the citizens' representative or to a person acting on behalf of or under the

direction of the citizens' representative

(

a) when that person is requesting advice about making

a disclosure;

(

b) when that person is making a disclosure; or

(

c) during an investigation.

(2) A person shall not knowingly make a false or

misleading statement, orally or in writing, respecting a complaint about a reprisal

to the board or a person acting on behalf of or under the direction of the

board.

(3) A person shall not wilfully obstruct

(

a) the citizens' representative or a person acting

on behalf of or under the direction of the citizens' representative in the performance

of a duty under this Act; or

(

b) the board or a person acting on behalf of or

under the direction of the board in the performance of a duty under this Act.

(4) A person shall not, knowing that a document or

thing is likely to be relevant to an investigation under this Act,

(

a) destroy, mutilate or alter the document or thing;

(

b) falsify the document or make a false document;

(

c) conceal the document or thing; or

(

d) direct, counsel or cause, in any manner, a person

to do anything described in paragraphs (a), (

b) or (c).

(5) A person who contravenes this

section or

section

21 is guilty of an offence and is liable on

summary

conviction to a fine of not more than $10,000.

Protection from liability

25. An

action or proceeding may not be brought against the citizens' representative or

a person acting on behalf of or under the direction of the citizens' representative

for anything done or not done, or for neglect,

(

a) in the performance or intended performance of a

duty under this Act; or

(

b) in the exercise or intended exercise of a power

under this Act

unless it is shown that he or she was acting

in bad faith.

Arranging legal

advice

26. Where

the citizens' representative is of the opinion that it is necessary in order to

further the purpose of this Act, he or she may, subject to the regulations,

arrange for legal advice to be provided to employees and others involved in a

proceeding under this Act.

Disclosures- frivolous,

vexatious, bad faith

27. An

employee who makes a disclosure of a wrongdoing, where the disclosure is

frivolous, vexatious or in bad faith, is subject to appropriate disciplinary

action in addition to and apart from another penalty provided for by law.

Regulations

28. The

Lieutenant-Governor in Council may make regulations

(

a) designating a body as a public body for the purpose

of this Act;

(

b) exempting Acts or regulations from the application

section 10 where the exemption is in the public

interest;

(

c) respecting the provision of legal advice under

section 26 , including determining the

circumstances under which legal advice may be provided and the amounts that may

be paid;

(

d) defining a word or phrase used but not defined

in this Act; and

(

e) generally, to give effect to this Act.

RSNL1990 cL-1

Amdt.

(1) The Labour Relations Act is amended by adding immediately after

section

17 the following:

Referral under Public

Interest Disclosure and Whistleblower Protection Act

17.1

(1) An

employee or former employee who alleges that a reprisal has been taken against

him or her may apply to the board in accordance with

section 22 of the Public

Interest Disclosure and Whistleblower Protection Act for a determination of

whether a reprisal has been taken contrary to

section 21

of that Act.

(2) Notwithstanding subsection (1), where the

board determines that another proceeding is capable of appropriately dealing

with the substance of a complaint, the board may, at any time before the complaint

is considered, defer further consideration of the complaint until the outcome

of the other proceeding.

(3) In making a determination under subsection (2),

the board shall consider all relevant factors, including the subject matter and

nature of the other proceeding and the adequacy of the remedies available in

the other proceeding in the circumstances.

(4) Where the board defers consideration of a

complaint, the board shall serve the parties to the complaint with a written

notice of and the reasons for the deferral.

(5) The board may dismiss all or part of a

complaint where the board is satisfied that

(

a) this Act provides no jurisdiction to deal with

the complaint or that part of the complaint;

(

b) the complaint or that part of the complaint is

trivial, frivolous, vexatious or made in bad faith; or

(

c) the substance of the complaint or that part of

the complaint has been appropriately dealt with in another proceeding.

(6) Where the board dismisses all or part of a

complaint, the board shall serve the parties to the complaint with a written

notice of and the reasons for the dismissal.

(2) Section 18 of the Act is amended by adding

immediately after paragraph (k.2) the following:

(k.3) make a determination of whether a reprisal has

been taken contrary to

section 21 of the Public Interest Disclosure and Whistleblower

Protection Act ;

Commencement

30. This Act comes into force on July 1, 2014.

Queen's Printer