The whistleblower’s dilemma: to report or not?

This article features Government Accountability Project and was originally published here.

JOHN’S, N.L. — If you’re thinking about blowing the whistle on wrongdoing in a public sector workplace, there is legislation to guide you, but it’s still a scary prospect.

“I can tell you there is a fair amount of handholding,” said Bradley Moss, Newfoundland and Labrador’s citizen’s representative.

“Generally, you are throwing a gauntlet at somebody in higher authority. You are afraid for your job. While reprisals are illegal, it’s a genuine fear — what we call whistleblower’s dilemma.”

There are two pieces of legislation in Newfoundland and Labrador, one aimed specifically at lawmakers. Moss says the second one — the result of a 2006 Member of the House of Assembly spending scandal — puts the province ahead of most. The other is the Public Interest Disclosure and Whistleblower Protection Act, which has been around since 2014 and applies to employees within government departments, including Executive Council, as well as those employed with government boards, corporations, authorities and agencies.

There have been 76 inquiries and six investigations under the broader whistleblower act since it came into force in 2014 and another four under the 2007 legislature-specific act.

“The legislation is serving its purpose. I am sure there are things going on out there people are afraid to report or whatever else. We tell people they should come forward in confidence,” said Moss.

Anonymity is guaranteed and it can take months of communicating with a generic email address to bring someone to the point of writing out a formal complaint, and afterward, Moss continues to address any concerns they raise about reprisals.

Are there beans that don’t get spilled? Maybe.

“I spend more time than I should on social media. You see things from time to time and you go, ‘hmmm,’” Moss said.

Reports can be dry reading, until you spot a trend.

Combing through years of departmental accountability reports filed under Nova Scotia’s Public Interest Disclosure of Wrongdoing Act yields a trickle of inquiries.

And while the Nova Scotia ombudsman’s office once had a bit of a spike in complaints under the Public Interest Disclosure of Wrongdoing Act, there’s been little lately.

Are people afraid to talk? Is everybody just behaving? Or are the misbehavers getting craftier?

Nova Scotia ombudsman Bill Smith, a former RCMP commander of B Division in Newfoundland and Labrador, doesn’t have evidence either way.

“There’s nothing I can lay my finger on” he said. “It’s very tough to draw any reasonable conclusion.… Anecdotally, and even experience-wise in my 42 years in public service, I am not naive enough to think that there probably aren’t things happening that we might maybe be concerned about, but they’re certainly not being brought to our attention.”

Smith has compared notes, however, with colleagues around the country who meet annually.

“When legislation first comes out it seems like there’s a bit of a run on it in terms of complaints, and after it’s been in place for some time, that levels off, Smith said.

The drop-off could be because there are no incidents to report or that no one is reporting them.

“There’s different schools of thought,” he said.

One thing he’s sure of? His office is ready for complaints.

Smith’s office has done fraud and respectful workplace awareness education and has trained people in departments designated as responsible under the act.

But if you talk to Danny Cavanagh, president of the Nova Scotia Federation of Labour, there’s a lot more work that needs doing on whistleblower protection in Nova Scotia.

He said the COVID-19 pandemic has underscored the fear of coming forward, particularly in frontline work, such as long-term care, as employees fear professional sanction.

There’s also a mechanism under the Protection for Persons in Care Act, but Cavanagh said none of the Nova Scotia protection does the job it should for would-be whistleblowers to feel comfortable coming forward.

It’s time the unions and the government worked together to fix it, Cavanagh said.

Why haven’t they? That’s a good question, said the labour leader, suggesting governments too often think they are already doing the right thing.

Workers think otherwise, he said.

“People have just generally lost faith in any kind of system that is going to protect them,” Cavanagh said.

In Newfoundland and Labrador, Moss said some inquiries don’t meet the test for an investigation and some are a better fit under the ombudsman-type role Citizen’s Representative Act. Others are crimes and must be referred to law enforcement.

Some matters resulting from inquiries can be resolved quickly by a department’s deputy.

“They will take immediate and swift action. The desire to avoid the problem will jar people into action. In their defence, this might be the first time they are hearing about this,” Moss said.

“They are generally really good at cleaning messes up prior to any sort of investigation, and that’s OK because I regard that as serving the public interest well. As a matter of fact, it will probably save us 10 months of investigation and fact-finding.”

Investigations under the Public Interest Disclosure and Whistleblower Protection Act are time-consuming.

The citizen’s rep might handle several hundred inquires related to ombudsman work in the run of a year.

“But you get one or two whistleblower investigations, especially simultaneously, they can take up a lot of resources,” Moss said.

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First, the inquiry must meet the threshold for an investigation to go forward.

“When we reach the investigation phase, we have satisfied ourselves internally there is something going on there. We’ve asked all the questions upfront,” Moss said.

“It’s not as simple as slipping a brown envelope under the door and waiting for it to go off. There is a heightened expectation of whistleblowers — they are going to be able to bring forward some type of evidence this is actually going on. Otherwise, what you get is vendettas and those types of campaigns.”

Prince Edward Island has not yet proclaimed its Public Interest Disclosure and Whistleblower Protection Act and there is no commissioner in place.

A case from the province made national headlines.

In 2019, the P.E.I. government announced a settlement of a lawsuit involving three former employees who blew the whistle on the province’s Provincial Nominee Program.

Cora Plourd Nicholson and Svetlana Tenetko were former employees of Island Investment Development Inc. while Susan Holmes was a former employee of the Department of Innovation and Advanced Learning.

The three had expressed concerns about the provincial nominee immigration program during their employment. They alleged in the statement of claim that government officials pressured them to approve immigrant investor applications that had been rejected during an initial review.

As well, in 2011, a P.E.I. Liberal party news release disclosed personal information without the consent of the three women, a privacy breach confirmed by a 2017 decision of the privacy commissioner. The province promised to follow the privacy commissioner’s recommendations to improve education on privacy rules and to require an internal investigation if a privacy breach occurs.

The good that can come out of whistleblowers coming forward can really hit home.

That’s what happened in Nova Scotia in 2011-12 when someone alleged wrongdoing involving two water supplies in the Municipality of the County of Antigonish that allegedly were not meeting provincial drinking water treatment standards. The investigation concluded one of the systems was meeting the standard, but that a small system at Gaspereaux Lake was not, according to the ombudsman’s annual report for that year. The system was not adhering to the Nova Scotia Treatment Standards for Municipal Drinking Water Systems (2012) because it did not have a continuous chlorine residual monitoring system.

Nova Scotia Environment staff indicated they were aware that the facility did not have the required monitoring system in place, and that a decision had been made in 2003 not to install it. They indicated that such a system was not required at the time

This ombudsman’s office found wrongdoing in the case, as a legislated safety requirement had not been met.

As a result, the department was told to ensure that all municipal water supplies met compliance.

“The case makes clear that wrongdoing does not always entail misuse of public funds or conflicts of interest,” the ombudsman report noted.

Canada’s federal whistleblower law isn’t exactly burning down the house of wrongdoing.

A report last month by the International Bar Association’s Government Accountability Project in a review of whistleblower law in 38 countries around the world noted the federal law — Public Servants Disclosure Protection Act — is nearly entirely dormant. That’s concerning.

“Canada, Lebanon and Norway’s laws are tied for the world’s weakest whistleblower protection laws, only matching one out of 20 criteria,” the report said.