Employee whistleblower protections in the time of COVID-19

  • May 25, 2021
  • Jennifer Del Riccio

Employees who become aware of illegal or improper actions taken by their employers may choose to report this misconduct to a third party, an act commonly referred to as “whistleblowing.” But employee whistleblowers risk serious professional consequences, including reprisals such as stigma and harassment, discipline, and termination.

Whistleblowing has come to the forefront of many discussions of the workplace during COVID-19, as some employees “blowing the whistle” on their employers’ failure to comply with occupational health and safety laws and pandemic protocols; Luis Gabriel Flores Flores, a migrant agricultural worker at a farm in Norfolk, Ontario, was fired after speaking to the media about crowded and unsafe living quarters at the farm, where nearly 200 workers contracted COVID-19 and one died of the virus. But what legal protections are available to Canadian employees who blow the whistle, and how effective are these protections at preventing employer reprisal?

Whistleblower protections vary from province to province and differ based on the content of the misconduct the employee is disclosing. Workers who report workplace safety concerns, as Mr. Flores did, are typically protected from reprisals by their jurisdiction’s occupational health and safety or more general labour and employment law statutes. But where the conduct of concern does not relate to occupational health and safety, a patchwork of federal and provincial legislation exists to offer protection from reprisals to employee whistleblowers.

Whistleblowers employed in the federal public sector are protected from reprisals by the Public Servants Disclosure Protection Act (PSDPA). The Act defines reprisal as

“any of the following measures taken against a public servant because the public servant has made a protected disclosure or has, in good faith, cooperated in an investigation into a disclosure or an investigation commenced under section 33:

  1. A disciplinary measure;
  2. The demotion of the public servant;
  3. The termination of employment of the public servant, including, in the case of a member of the Royal Canadian Mounted Police, a discharge or dismissal;
  4. Any measure that adversely affects the employment or working conditions of the public servant; and
  5. A threat to take any of the measures referred to in any of paragraphs (a) to (d).”

Two key PSDPA provisions offer protections to whistleblowers. Section 19 states simply “no person shall take any reprisal against a public servant or direct that one be taken against a public servant.” Section 42.1(1) also provides protection from reprisals targeted at employees who reveal wrongdoing in the public sector but are not themselves public servants.

Under s. 21.7(1) of the PSDPA, remedies available to employee whistleblowers who have experienced reprisals include reinstatement, back pay, rescission of any disciplinary measure taken against the employee, costs for financial losses stemming from the reprisal, and up to $10,000 in damages for “any pain and suffering that the complainant experienced as a result of the reprisal.”

Reprisals against workers in the provincial public sector are prohibited by legislation similar to the PSDPA in every province and territory except the Northwest Territories (Prince Edward Island’s Public Interest Disclosure and Whistleblower Protection Act was passed in 2017, but has yet to come into force), and the contents of the provincial statutes typically mirror that of the federal statute. One key difference is that, unlike in the PSDPA, provincial whistleblower statutes generally do not offer protection to those who report misconduct by an employer in the public sector but are not actually employed within that sector.

Various offices and tribunals are tasked with investigating and hearing whistleblower reprisal complaints made by employees in the public sector. At the federal level, the Public Sector Integrity Commissioner investigates whistleblower reprisal complaints, and if he or she has reason to believe that reprisal may have occurred, refers the complaint to the Public Servants Disclosure Protection Tribunal for a hearing and decision. The most common outcome of Commissioner investigations, however, is conciliation; since 2011, the Tribunal has heard only eight cases.

Another statute that offers protection from reprisals to every Canadian employee is section 425.1 of the Criminal Code, which states

  1. “No employer or person acting on behalf of an employer or in a position of authority in respect of an employee of the employer shall take a disciplinary measure against, demote, terminate, or otherwise adversely affect the employment of such an employee, or threaten to do so,
    1. with the intent to compel the employee to abstain from providing information to a person whose duties include the enforcement of federal or provincial law, respecting an offence that the employee believes has been or is being committed contrary to this or any other federal or provincial Act or regulation by the employer or an officer or employee of the employer or, if the employer is a corporation, by one or more of its directors; or
    2. with the intent to retaliate against the employee because the employee has provided information referred to in paragraph (a) to a person whose duties include the enforcement of federal or provincial law.”

Section 425.1 is a hybrid offence, and a person convicted of contravening the section faces a penalty of up to five years imprisonment. The section has been invoked extremely infrequently in the case law, and to date, no party has ever been convicted of an offence under s. 425.1.

Whistleblower protection provisions also exist in financial sector legislation, namely the Ontario Securities Act and similar legislation in other provinces. Under the Ontario statute, section 121.5(1) prohibits reprisal against an employee who provides information to the Ontario Securities Commission about, or participates in an investigation by the Commission of, an action by their employer that the employee “reasonably believes is contrary to Ontario securities law or a by-law or other regulatory instrument of a recognized self-regulatory organization.”

Clearly, there are gaps in Canadian whistleblower protection legislation and its efficacy. The COVID-19 pandemic has highlighted the importance of robust legal protection for whistleblowers who report employer misconduct and may encourage those in law and public policy to advocate for reforms of existing legislation.

Jennifer Del Riccio is a third year Juris Doctor student at Osgoode Hall Law School and is the Student Representative on the Labour and Employment Law Section.