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SNL2014

CHAPTER P-37.2

PUBLIC INTEREST DISCLOSURE AND WHISTLEBLOWER PROTECTION ACT

Amended:

2021 cA-22.1 s50; 2023 c18 s45

CHAPTER P-37.2

AN ACT RESPECTING PUBLIC INTEREST DISCLOSURE

(Assented to June 5, 2014)

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

This Act may be cited as the Public Interest Disclosure and Whistleblower Protection Act.

2014 cP-37.2 s1

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Definitions

this Act

(a)

" board

" means the Labour Relations Board appointed under the Labour Relations Act;

(b)

" chief

executive" means

(

i) relation to a department, the deputy minister of that department, and

(ii)

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) corporation, the ownership of which or a majority of the shares of which is vested in the Crown,

(ii)

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)

the

conseil

scolaire constituted or established under the Schools Act, 1997,

and

(iv)

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) disciplinary measure,

(ii)

demotion,

(iii)

termination

of employment,

(iv)

measure that adversely affects his or her employment or working conditions, or

(

v) 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

2014 cP-37.2 s2 ; 2023 c18 s45

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Purpose

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.

2014 cP-37.2 s3

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Wrongdoings to which this Act applies

(1)This Act applies to the following wrongdoings in or relating to the public service:

(

a) 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.

2014 cP-37.2 s4

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Discipline for wrongdoing

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.

2014 cP-37.2 s5

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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.

2014 cP-37.2 s6

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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.

2014 cP-37.2 s7

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Content of disclosure

(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) description of the wrongdoing;

(

b) the

name of the person alleged to

(

i) have

committed the wrongdoing, or

(ii)

about to commit the wrongdoing;

(

c) the

date of the wrongdoing; and

(

d) whether

the wrongdoing has already been disclosed and a response received.

2014 cP-37.2 s8

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Citizens' representative to facilitate resolution within public service

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.

2014 cP-37.2 s9

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Disclosure despite other Acts

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.

2014 cP-37.2 s10

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Where disclosure restrictions continue to apply

(1) Notwithstanding

section 10

, nothing in this Act authorizes the disclosure of

( a

information or documents which would disclose the deliberations of the Executive Council or a committee of the Executive Council; or

(

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.

2014 cP-37.2 s11

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Other obligations to report not affected

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.

2014 cP-37.2 s12

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Purpose of investigation

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.

2014 cP-37.2 s13

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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.

2014 cP-37.2 s14

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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) 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 by

(

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, 2021;

(

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.

2014 cP-37.2 s15 ; 2021 cA-22.1 s50

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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.

2014 cP-37.2 s16

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Investigating other wrongdoings

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.

2014 cP-37.2 s17

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

(

b) 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.

2014 cP-37.2 s18

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

(

b) the case of a public body, to the board of directors and the minister responsible.

2014 cP-37.2 s19

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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.

2014 cP-37.2 s20

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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.

2014 cP-37.2 s21

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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 to

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) 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) person do or refrain from doing any thing in order to remedy a consequence of the reprisal.

2014 cP-37.2 s22

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Labour Relations Act applies

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.

2014 cP-37.2 s23

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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.

2014 cP-37.2 s24

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Protection from liability

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) the performance or intended performance of a duty under this Act; or

(

b) the exercise or intended exercise of a power under this Act

unless

it is shown that he or she was acting in bad faith.

2014 cP-37.2 s25

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Arranging legal advice

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.

2014 cP-37.2 s26

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Disclosures- frivolous, vexatious, bad faith

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.

2014 cP-37.2 s27

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Regulations

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 of

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.

2014 cP-37.2 s28

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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;

2014 cP-37.2 s29

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Commencement

This Act comes into force on July 1, 2014.

2014 cP-37.2 s30

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