The Quebec government has proposed new measures to encourage the
disclosure of wrongdoing in the public sector. On December 2, 2015,
Martin Coiteux, the Minister responsible for Government
Administration and Ongoing Program Review and Chair of the
Conseil du trésor sponsored and introduced Bill
n°87: An Act to facilitate the disclosure of wrongdoings within
public bodies (the "Bill").The
purpose of the legislation is to "facilitate the disclosure of
wrongdoings within public bodies and to establish a protection
regime against reprisals." In brief, the Bill creates a formal
regime for whistleblowing "wrongdoings" in "public
At first glance, the Bill may appear principled and as clean as
a whistle. However, this ambitious bill has a highly robust ambit.
Its scope is a vast array of alleged misconduct and it affects most
of the public sector. The definition of public bodies includes even
government enterprises, ministers, health facilities, crown
corporations, school boards and university-level educational
institutions. Furthermore, the definition of wrongdoing is also
defined very broadly. Among the enumerated list of actions which
constitute wrongdoing and which trigger the application of the
formal whistleblowing regime is "gross mismanagement".
Other wrongdoings include a contravention of a law, a serious
breach of the standards of ethics, a misuse of funds or assets
belonging to a public body, and any act or omission that seriously
compromises or may seriously compromise a person's health or
safety or the environment. Directing or counselling a person to
commit any of the above also constitutes wrongdoing.
The disclosure of wrongdoing can also be made by anyone, whether
or not an employee of the impugned public body. Nevertheless, the
Bill expressly excludes disclosures made for personal purposes not
in the public interest and disclosure the purpose of which is to
question the merits of the policies and program objectives of the
Government or of a public body. While the Bill does protect the
whistleblower from retribution, it offers no rewards or incentives
beyond punishing the target of the protected disclosure.
One would not be merely whistling dixie to emphasize the
profound impacts that the Bill can have. The Bill raises a variety
of deceptively complicated issues and, by casting the legislative
net so wide, there is a risk of opening Pandora's Box of
frivolous whistleblowing complaints.
This blog post is meant only to wet your whistle and inform you
about the potential forthcoming impact of a bill that raises
complex societal issues beyond its legislative framework. The
substance of the Bill is subject to ongoing review and comments are
currently being accepted. Given the complexity and potential impact
of Bill 87, it is anticipated that many interested parties will
want to be heard as part of its continuing review.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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