By Howard Levitt and Kathryn Marshall
Employees don’t have the same statutory whistleblower protections that public sector employees enjoy
A CSIS whistleblower recently came forward with explosive allegations of Chinese interference in Canadian democracy. There is an inquiry currently unfolding on Parliament Hill with a host of political staffers scheduled to testify. This could be the tip of the iceberg or a nothing burger. But what is clear is that whistleblowers can have a massive impact and set off a domino effect.
In the employment law context, we often see whistleblowing.
But there can be a misconception as to what makes one a whistleblower. A disgruntled person with an axe to grind and nefarious motivations to humiliate their employer is not a whistleblower. Sometimes people erroneously label themselves as whistleblowers, but their motivations are entirely dishonest and self-interested. They are simply seeking to extort their employer, not cure underlying ills.
What does it mean to be a genuine whistleblower?
It is an individual, usually an employee of a government agency or private corporation, who sheds light on wrongdoing. Often this wrongdoing will involve illegal, fraudulent or corrupt activity.
Often the whistleblowing is achieved by bringing the information to the public’s attention or reporting it to a higher authority, such as an anonymous tip line, an ombudsperson or in the case of the CSIS information — a newspaper.
Whistleblowing can be done anonymously or in the open. And of course, there are various degrees of whistleblowing. Sometimes the information can be serious and trigger a criminal investigation. Other times it is more mundane.
What whistleblowers often fear is not the act of stepping forward, but the repercussions and retaliation that can follow.
While there are legislated protections for whistleblowers in Canada in the public service, the practical reality is that people may still face severe consequences for exposing information.
Often the employer or institution will engage an investigator, a move that generally has more to do with killing the story and learning what evidence the employee has prior to taking a position in any litigation, then finding out what really happened.
It is often a trap for the employee coming forward with the complaint and, when acting for executives who are whistleblowers, we virtually never permit them to participate in an investigation where the employer gets effectively a free deposition of the employee without a reciprocal investigation or deposition of the employer. Remember, the investigator is paid by the employer and, especially external ones, are anxious to please that employer and obtain further lucrative assignments. And in the realm of legal work, few jobs pay as well for as little expertise as investigations.
The product of those investigations can be problematic, too. In one recent case, a medical resident who sued for defamation over the contents of an investigations, which portrayed her in a negative light, lost her case because the court found that there was no basis for a defamation suit. This is because the court determined that an investigation report is in the public interest and therefore there is a privilege attached to such reports, making it more difficult to sue for libel. The fact that she had publicized her complaint in the press factored into the decision, with the court finding that it took the matter from the private realm to the public.
While there are some statutory protections for whistleblowers — especially in the public service — there is nothing to protect them from the real consequences of coming forward. Things like social stigma and being made into a pariah.
The legal landscape for whistleblowers in Canada is still murky for private sector employees.
Employees are protected at common law from retaliation and bad faith conduct, if proved in court, but they don’t have the same statutory whistleblower protections that public sector employees enjoy.