Deciding to Make a Disclosure

A protected disclosure is defined in the Act as a disclosure made by a public servant of any information that he or she believes could show that a wrongdoing was committed or is about to be committed in the federal public sector, or that could show that the public servant has been asked to commit a wrongdoing.

A disclosure is protected if it is made in good faith to the public servant’s supervisor, to his/her organization’s designated Senior Officer for internal disclosure, or to this Office.

A protected disclosure also includes information provided in the course of a parliamentary proceeding or a procedure established under any other Act of Parliament, as well as when a public servant is lawfully required to make a disclosure.

The concept of “protected” is an important one, as someone making such a disclosure is protected against reprisal.

You may choose to disclose because:

• We all rely on our federal public institutions and we all have a stake in making them as strong as possible for the benefit of all Canadians.
• It is in the public interest and in the interest of your organization to share information about wrongdoing with someone in a position to do something about it.
• It is part of doing your job well, and being a responsible, committed and honest employee.
• The earlier a problematic situation is addressed, the less negative impact it will have.
• If you ignore such situations, they may be repeated, become more serious and damage your organization.
• You want to be part of the solution.

Public sector employees may disclose wrongdoing to:

• their supervisor;
• the Senior Officer designated for internal disclosure in their organization; or
• the Office of the Public Sector Integrity Commissioner of Canada.

Your organization may have its own procedures to make a disclosure.

You are not obligated to exhaust internal mechanisms in your organization before contacting our Office.

A member of the public may also provide information concerning an alleged wrongdoing in the federal public sector by contacting our Office directly.

It is bringing to light wrongdoing to have it effectively addressed.

Making a disclosure is communicating to your supervisor, the designated Senior Officer for internal disclosure in your organization or our Office any information that you believe could show that a wrongdoing was committed or is about to be committed in the federal public sector, or that could show that you were asked to commit a wrongdoing.

It is sharing relevant information that supports your allegations. This information, when validated, could lead to a finding of wrongdoing.

We ask that you provide all information you may have in your possession that is relevant to your allegations. However, you must not disclose Cabinet documents or information that is subject to solicitor-client privilege because it cannot be used by our Office in an investigation.

If we do not have enough information to assess or act on a disclosure, we will advise you and request further information if required.

The expression “gross mismanagement" is not defined by the Act. Among the numerous factors considered to make a finding of gross mismanagement, the Office will take into account the following:

• matters of significant importance;
• serious errors that are not debatable among reasonable people;
• more than minor wrongdoing or negligence;
• management action or inaction that creates a substantial risk of significant adverse impact upon the ability of an organization, office or unit to carry out its mandate;
• management action or inaction that poses a serious threat to public confidence in the integrity of the public service, and that does not primarily concern a personal matter, such as individual harassment complaints or individual workplace grievances;
• the deliberate nature of the wrongdoing; and
• the systemic nature of the wrongdoing.

Not all factors are required to meet the definition of gross mismanagement.

The definition of wrongdoing refers to actions that could seriously impact the public’s confidence in the integrity of the public service.

To determine whether the matter you are concerned about falls within that definition, some questions to ask yourself include the following:

• Could the matter you are concerned about seriously impact the public’s confidence in the public service? If so, disclosing may be the appropriate channel.
• Does the matter primarily concern a personal matter, such as individual harassment or a personal human resources issue? If so, your concerns would likely be better dealt with through existing procedures or recourse mechanisms available to address them.

Some situations, while not meeting the definition of a wrongdoing under the Act, may still require attention. If our Office is not the most appropriate mechanism to deal with the situation you raise, we will do our best to direct you to the right place.

You may also consult our info cards that identify some factors for determining wrongdoing.

If in doubt, contact the Office. We can provide information and guidance to help you make an informed decision and can also provide you with details about the process and what you can expect if you submit a disclosure to our Office.

You may also wish to consult our list of other organizations that may be able to address your complaint.

Harassment can be a very serious matter. However, it is generally not considered wrongdoing under the Act. The Act is intended to address wrongdoing that could seriously impact the public’s confidence in the integrity of the public service. It is not intended to address matters of a primarily personal nature, such as individual harassment complaints.

Individual harassment complaints are more appropriately dealt with under your organization’s harassment policy or Treasury Board Secretariat’s Directive on the Prevention and Resolution of Workplace Harassment and Violence.

Each of us has an ethical responsibility to disclose wrongdoing. This is part of being responsible, honest employees who have the public interest and the interest of their organization at heart.

We should all work together to ensure that the highest ethical and professional standards are upheld in the federal public sector, and to identify and respond to wrongdoing. Our Office was created for this reason, but each of us has the ongoing responsibility to work to prevent wrongdoing from occurring in the first place, and when wrongdoing does occur, to respond to it immediately by speaking to those who have the power to remedy the situation and to take the necessary corrective action.

This ethical responsibility is in addition to obligations that public servants may have to disclose or report wrongdoing under any other Act of Parliament.

Yes, as a public servant, you have to co-operate with the work of the Office, as stated in the Act. Co-operation is essential to our ability to fulfill our duties and to carry out our work in the best interests of the public sector and of all Canadians. You must also co-operate if you are asked to be a witness or to provide information pertaining to an investigation.

This co-operation may include providing facilities, assistance, information and access to offices that might be required during an investigation. You must also ensure that documents that could be relevant to an investigation are not destroyed, mutilated, altered, falsified or concealed.

Yes, but it may limit our response.

The Act does not provide a mechanism to make anonymous disclosures and it is difficult for our Office to determine whether the information is provided by a public servant in good faith. However, our Office may investigate anonymous disclosures if the information concerns serious wrongdoing and appears reliable and sufficient to enable the allegations to be investigated.

We encourage anyone who fears identifying himself/herself for the purpose of making a disclosure to contact our Office to discuss the process and procedures we use and the protections provided by the Act to disclosers.

Yes, you may be accompanied by any person you choose, including your union representative.

You may wish to seek legal advice before filing a disclosure or wrongdoing or during the process, but you are not required to bring legal counsel, a union representative or any other type of representation.

The Commissioner has the authority to approve access to funding for legal advice to any person involved in a complaint or investigation, with the following considerations:

• A contribution of $1,500 is available to assist with legal representation.
• In exceptional circumstances, up to $3,000 may be provided for access to legal advice.
• You must not have access to free legal advice by other means.
• You may also qualify to receive legal advice if you are considering making a complaint, but have not already done so.

Not in most cases. The purpose of the Act is to allow public servants to disclose within their organization or to our Office, potential wrongdoing in a confidential manner, and be protected against reprisal for doing so.

A disclosure to the media is only protected in exceptional circumstances: if the public servant does not have enough time to make it to his/her supervisor, his/her Senior Officer or to our Office, and the public servant believes on reasonable grounds that there has been a serious breach of federal or provincial laws, or that there is an imminent risk of a substantial and specific danger to the life, health and safety of persons or the environment.

Yes. All disclosures of wrongdoing made to our Office are closely reviewed by members of the staff to ensure the subject-matter fits within the Commissioner’s legislated mandate.

The review process involves the extensive examination of documents provided and research into factual and legal issues to determine if further action is needed.

Some of the factors that the Commissioner considers when the decision whether or not to investigate include:

• whether the disclosure, if proven, would constitute wrongdoing under s.8 of the Act, or reprisal under s.2 of the Act.
• whether the information disclosed has been properly and adequately dealt with, or could more appropriately be dealt with, according to another procedure (for example, human rights violations can be dealt with by the Canadian Human Rights Commission);
• the length of time that has elapsed since the events occurred (after a certain amount of time, it may serve no useful purpose to deal with the disclosure).

The most common reasons for not dealing with the subject-matter of the disclosure or of the investigation are:

• That it does not meet the definition of wrongdoing under the Act;
• That the subject-matter is already being handled internally or by another body;
• That the disclosure falls outside of the Commissioner’s jurisdiction under the Act; or,
• That there are no grounds to support the allegations, e.g. they are entirely based on speculation or they are not supported by any specific information.

Your disclosure will be reviewed by an analyst to determine if further action is necessary. The purpose of the admissibility analysis is to review your allegations, verify that they are within our jurisdiction, and make a recommendation to the Commissioner, based on the result of the analysis, as to whether your allegations of wrongdoing should be investigated.

The Commissioner will notify you in writing of her decision to take or not take further action, as well as the reasons for her conclusion.

If the Commissioner’s decision is to investigate, we will advise the chief executive of the organization involved. If required, we will also advise persons against whom allegations have been made.

You may be asked to participate as a witness during the course of the investigation, and at the end of an investigation you will be notified of the Commissioner’s findings.

As each case is unique, it is difficult to set out a specific timeframe for how long the investigation process takes. For example, factors that affect the length of time the process can take include:

• availability of documentation and key witnesses;
• complexity of issues; and/or
• whether specific expertise or research is needed.

We implemented service standards to provide greater transparency and certainty to our stakeholders, as well as to have an objective means of measuring our own performance.

The Act provides a 15-day time limit, from the date when the information on file is complete, for us to determine whether to act on a complaint of reprisal. In addition, we will apply the following service standards, barring exceptional circumstances:

• General inquiries will be responded to within one working day;
• A decision to investigate a disclosure of wrongdoing will be made within 90 days of the discloser’s first contact with our Office; and
• Investigations will be completed within one year of being launched.

Note: The Office is receiving an unprecedented number of disclosures of wrongdoing, reprisal complaints and general inquiries. As a result of increased submissions, delays in the analysis and investigation of files are expected.

In accordance with the Act, your identity will be protected to the extent possible. When conducting an investigation, the Commissioner must notify the chief executive concerned of the substance of the allegations under investigation.

The Commissioner, or the person conducting the investigation, may also notify any other person he considers appropriate, including every person whose acts or conduct are called into question by the disclosure to which the investigation relates, and inform that person of the substance of the disclosure not the discloser's identity. Nor does the Commissioner provide the name of the discloser to the alleged wrongdoer.

The Commissioner will make a decision as to whether the alleged wrongdoing is founded based on the results of the investigation.

The Commissioner’s decision will be communicated to the discloser, other persons involved, and to the organization’s chief executive. If wrongdoing is found to have occurred, the Commissioner can make recommendations to chief executives concerning corrective measures and will report the finding to Parliament within 60 days of informing the chief executive.

The Office is committed to ensuring that the principles of natural justice and procedural fairness are applied to all persons involved.

If you are alleged to have committed a wrongdoing, you will be informed of the substance of the disclosure. You will be given full and ample opportunity to answer any allegation. You have the right to be assisted or represented by any person of your choice, including counsel.

There is no appeals process for the Commissioner’s decisions. However, an application for judicial review of the Commissioner’s findings may be brought to the Federal Court of Canada.