Bill 8 - Public Interest Disclosure Act

BILL 8

Public Interest Disclosure Act

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

DEFINITIONS AND PURPOSE

Definitions

1 The following definitions apply in this Act.

“Board” means the Labour and Employment Board established under the Labour and Employment Board Act. (Commission)

“chief executive” means (chef administratif)

(a) subject to paragraph (b), the deputy head or chief executive officer of any portion of the public service, or the person who occupies any other similar position, however called, in any portion of the public service, and

(b) in relation to a school district, the superintendent of the school district.

“Commissioner” means the Conflict of Interest Commissioner appointed under the Members’ Conflict of Interest Act. (Commissaire)

“designated officer” means the senior official designated under section 7 to receive and deal with disclosures under this Act. (fonctionnaire désigné)

“disclosure” means a disclosure made in good faith by an employee in accordance with this Act. (divulgation)

“employee” means a person employed in the public service. (employé)

“employer” means an employer as defined in the Public Service Labour Relations Act. (employeur)

“public service” means the several portions of the public service of the Province specified from time to time in Part I, Part II, Part III or Part IV of the First Schedule of the Public Service Labour Relations Act. (services publics)

“reprisal” means any of the following measures taken against an employee because the employee has, in good faith, sought advice about making a disclosure, made a disclosure, or cooperated in an investigation under this Act: (représailles)

(a) a disciplinary measure;

(b) a demotion;

(d) any measure that adversely affects his or her employment or working conditions;

(e) a threat to take any of the measures referred to in paragraphs (a) to (d).

“wrongdoing” means a wrongdoing referred to in section 3. (acte répréhensible)

Purpose of Act

2 The purpose of this Act is

(a) to facilitate the disclosure and investigation of significant and serious matters in or relating to the public service, that are potentially unlawful, dangerous to the public or injurious to the public interest, and

(b) to protect persons who make those disclosures.

DISCLOSURE OF WRONGDOING

Wrongdoings to which this Act applies

3 This Act applies to the following wrongdoings in or relating to the public service:

(a) an act or omission constituting an offence under an Act of the Legislature or the Parliament of Canada, or a regulation made under an Act;

(b) an act or omission that creates a substantial and specific danger to the life, health or safety of persons, or to the environment, other than a danger that is inherent in the performance of the duties or functions of an employee;

(d) knowingly directing or counselling a person to commit a wrongdoing described in paragraphs (a) to (c).

Discipline for wrongdoing

4 An employee who commits a wrongdoing is subject to appropriate disciplinary action, including termination of employment, in addition to and apart from any other sanction provided for by law.

Disclosures - frivolous, vexatious, bad faith

5 An employee who makes a disclosure of a wrongdoing where the disclosure is frivolous, vexatious or in bad faith is subject to appropriate disciplinary action, including termination of employment, in addition to and apart from any other sanction provided for by law.

Procedures to manage disclosures

6(1) Every chief executive shall establish procedures to manage disclosures by employees of that portion of the public service for which the chief executive is responsible.

6(2) The procedures established under subsection (1) shall include procedures

(a) for receiving and reviewing disclosures, including setting time periods for action,

(b) for investigating disclosures in accordance with the principles of procedural fairness and natural justice,

(d) for reporting the outcomes of investigations, and

(e) respecting any other matter specified in the regulations.

6(3) This section applies to claims of wrongdoing that are referred to a chief executive under section 23, with the necessary modifications.

Designated officer

7 Every chief executive shall designate a senior official to be the designated officer for the purposes of this Act, to receive and deal with disclosures by employees in that portion of the public service for which the chief executive is responsible.

Exception

8(1) Sections 6 and 7 do not apply to a chief executive who determines in consultation with the Commissioner that it is not practical to apply those sections given the size of the portion of the public service for which the chief executive is responsible.

8(2) If no designation is made under section 7, the chief executive is the designated officer for the purposes of this Act.

Information about Act to be communicated

9 The chief executive shall ensure that information about this Act and the disclosure procedures is widely communicated to the employees of the portion of the public service for which the chief executive is responsible.

Advice on disclosure

10(1) An employee who is considering making a disclosure may request advice from the designated officer or the Commissioner.

10(2) The designated officer or Commissioner may require the request for advice to be in writing.

Disclosure by employee

11 Where an employee reasonably believes that he or she has information that could show that a wrongdoing has been committed or is about to be committed, the employee may make a disclosure to

(a) the employee’s supervisor,

(b) the employee’s designated officer, or

Content of disclosure

12 A disclosure made under section 11 shall be in writing and signed by the employee and shall include the following information, if known:

(a) a description of the wrongdoing;

(b) the name of the person or persons alleged to

(i) have committed the wrongdoing, or

(ii) be about to commit the wrongdoing;

(d) whether the wrongdoing has already been disclosed and a response received.

Commissioner to facilitate resolution

13 Where an employee makes a disclosure to the Commissioner, the Commissioner may take any steps he or she considers necessary to help resolve the matter within the portion of the public service in respect of which the disclosure has been made.

Public disclosure if situation is urgent

14(1) If an employee reasonably believes that a matter constitutes an imminent risk of a substantial and specific danger to the life, health or safety of persons, or to the environment, such that there is insufficient time to make a disclosure under this Act, the employee may make a disclosure to the public

(a) if the employee has first made the disclosure to an appropriate law enforcement agency or, in the case of a health-related matter, to the chief medical officer of health, and

(b) subject to any directions that the agency or officer considers necessary in the public interest.

14(2) Immediately after a disclosure is made under subsection (1), the employee shall also make a disclosure about the matter to his or her supervisor or designated officer.

Disclosure despite other Acts

15 Subject to section 16, an employee may make a disclosure under this Act, even if a provision in another Act or regulation prohibits or restricts disclosure of the information.

Where disclosure restrictions continue to apply

16(1) Nothing in this Act authorizes the disclosure of

(a) information or documents that would disclose the deliberations of the Executive Council or a committee of the Executive Council, or the proceedings of any of them,

(b) information that is protected by solicitor-client privilege,

(d) in the case of a disclosure to the public under subsection 14(1), information that is subject to any restriction created by or under an Act of the legislature or the Parliament of Canada, or a regulation made under an Act.

16(2) If the disclosure involves personal information or confidential information, the employee must take reasonable precautions to ensure that no more information is disclosed than necessary to make the disclosure.

Other obligations to report not affected

17 Nothing in this Act relating to the making of a disclosure is to be construed as affecting an employee’s obligation under any other Act or regulation to disclose, report or otherwise give notice of any matter.

Report about disclosures

18(1) Each year, a chief executive shall prepare a report of any disclosures of wrongdoing that have been made to a supervisor or designated officer of the portion of the public service for which the chief executive officer is responsible and of any claims referred to the chief executive under section 23.

18(2) The report shall include the following information:

(a) the number of disclosures received and the number acted on and not acted on;

(b) the number of investigations commenced as a result of a disclosure;

(d) the number of investigations commenced as a result of such claims;

(e) in the case of an investigation that results in a finding of wrongdoing, a description of the wrongdoing and the recommendations or corrective actions taken in relation to the wrongdoing or the reasons why no corrective action was taken.

18(3) The report shall be included in the annual report that is made in respect of that portion of the public service, if an annual report is made publicly available or, if otherwise, the chief executive shall make the report available to the public on request.

INVESTIGATIONS BY THE COMMISSIONER

Purpose of investigation

19 The purpose of an investigation into a disclosure of wrongdoing is to bring the wrongdoing to the attention of the appropriate officials in that portion of the public service in respect of which the disclosure is made, and to recommend corrective measures that should be taken.

Investigation by Commissioner

20(1) The Commissioner is responsible for investigating disclosures that he or she receives under this Act.

20(2) An investigation is to be conducted as informally and expeditiously as possible.

20(3) The Commissioner shall ensure that the right to procedural fairness and natural justice of all persons involved in an investigation is respected, including persons making disclosures, witnesses and persons alleged to be responsible for wrongdoings.

20(4) The Commissioner shall not investigate any decision, recommendation, act or omission of any person acting as a solicitor or crown prosecutor in the public service.

20(5) An investigation shall be conducted in private.

When investigation not required

21 The Commissioner is not required to investigate a disclosure, and may cease an investigation, if the Commissioner is of the opinion that

(a) the subject matter of the disclosure could more appropriately be dealt with, initially or completely, according to a procedure provided for under another Act,

(b) the disclosure is frivolous or vexatious, or has not been made in good faith or does not deal with a sufficiently serious subject matter,

(d) there is another valid reason for not investigating the disclosure.

Investigating other wrongdoings

22 If, during an investigation, the Commissioner has reason to believe that another wrongdoing has been committed, the Commissioner may investigate that wrongdoing in accordance with this Act.

Claims of wrongdoing by others

23 If the Commissioner receives a claim of wrongdoing that has been made anonymously or by a person who is not an employee, the Commissioner may, in his or her discretion, forward the claim to the chief executive of that portion of the public service in respect of which the claim of wrongdoing is made.

Powers of Commissioner

24 The Commissioner has all the powers, privileges and immunities conferred on a commissioner under the Inquiries Act.

Access to information

25(1) Notwithstanding any other Act or claim of privilege, and subject to subsection (3), the Commissioner has a right to all information and documentation that is necessary to enable the Commissioner to perform the duties and exercise the powers under this Act.

25(2) Subject to subsection (3), if the Commissioner requests a person to provide information relating to a matter being investigated by the Commissioner and the Commissioner is of the opinion that the person is able to provide the information, the person shall provide the information and produce any documents or papers that, in the opinion of the Commissioner, relate to the matter and that may be in the possession or under the control of the person.

25(3) The Commissioner does not have a right to the following information or documents:

(a) information or documents certified by the Attorney General as disclosing the deliberations of Executive Council or a committee of the Executive Council, or the proceedings of any of them;

(b) information protected by a claim of solicitor-client privilege; and

25(4) Subject to subsection (3), a rule of law that authorizes or requires the following does not apply to an investigation by or proceeding before the Commissioner:

(a) the withholding of a document, paper or thing on the ground that disclosure of the document, paper or thing would be injurious to the public interest; or

(b) the refusal to answer a question on the ground that answering the question would be injurious to the public interest.

Confidentiality of information

26(1) The Commissioner, employees of the Office of the Conflict of Interest Commissioner and any person appointed to assist the Commissioner pursuant to a contract for professional services shall keep confidential all information and other matters that come to their knowledge in the exercise of their duties or functions under this Act, unless required to disclose it by law or in furtherance of the Commissioner’s mandate under this Act.

26(2) Notwithstanding subsection (1), and subject to subsection (3), the Commissioner may disclose in a report made under this Act those matters which the Commissioner considers necessary to disclose in order to establish grounds for his or her conclusions and recommendations.

26(3) The Commissioner, employees of the Office of the Conflict of Interest Commissioner and any person appointed to assist the Commissioner pursuant to a contract for professional services shall not disclose to any person information that would identify a person without the person’s consent.

26(4) Failure by an employee to comply with subsection (1) or (3) is sufficient grounds for dismissal or other disciplinary action as the Commissioner considers appropriate.

Report regarding investigation

27(1) Upon completing an investigation, the Commissioner shall prepare a report containing his or her findings and any recommendations about the disclosure and wrongdoing.

27(2) The Commissioner shall give a copy of the report to the employee and the chief executive of the appropriate portion of the public service.

27(3) When the matter being investigated involves the chief executive, the Commissioner shall also give a copy of the report

(a) in the case of a department, to the minister responsible,

(b) in the case of a Crown corporation, regional health authority, board, commission or other body, to the board of directors and the minister responsible, and

(c) in the case of a school district, to the district education council of that school district and to the minister responsible.

Notification of proposed steps

28(1) When making recommendations, the Commissioner may request the chief executive of the appropriate portion of the public service to notify him or her, within a specified time, of the steps that have been taken or that are proposed to be taken to give effect to the recommendations.

28(2) Subsection (1) applies with the necessary modifications to the persons referred to in paragraphs 27(3)(a) to (c) where the matter in respect of which the recommendations have been made relate to the chief executive.

Report to minister or other body

29 If the Commissioner believes that any portion of the public service has not appropriately followed up on his or her recommendations, or did not cooperate in the Commissioner’s investigation under this Act, the Commissioner may make a report on the matter

(a) in the case of a department, to the minister responsible,

(b) in the case of a Crown corporation, regional health authority, board, commission or other body, to the board of directors and the minister responsible, and

(c) in the case of a school district, to the district education council of that school district and to the minister responsible.

Annual report

30(1) The Commissioner shall make an annual report to the Legislative Assembly on the exercise and performance of his or her functions and duties under this Act, setting out

(a) the number of general inquiries relating to this Act,

(b) the number of disclosures received and the number acted on and not acted on,

(c) the number of anonymous claims or claims filed by persons who were not employees, and the number of claims referred under section 23,

(d) the number of investigations commenced under this Act,

(e) the number and the substance of the recommendations the Commissioner has made and whether there has been compliance with the recommendations,

(f) whether, in the opinion of the Commissioner, there are any systemic problems that give rise to wrongdoings, and

(g) any recommendations for improvement that the Commissioner considers appropriate.

30(2) The report shall be given to the Speaker of the Legislative Assembly, who shall table a copy of it in the Legislative Assembly within 15 days after receiving the report if the Assembly is sitting or, if it is not, within 15 days after the next sitting begins.

30(3) Where it is in the public interest to do so, the Commissioner may publish a special report relating to any matter within the scope of the Commissioner’s responsibilities under this Act, including a report referring to and commenting on any particular matter investigated by the Commissioner.

PROTECTION FROM REPRISAL

Protection of employee from reprisal

31 No person shall take a reprisal against an employee or direct that one be taken against an employee because the employee has, in good faith,

(a) sought advice about making a disclosure from his or her supervisor, designated officer or chief executive, or the Commissioner,

(b) made a disclosure, or

Allegation of reprisal

32(1) An employee or former employee who alleges that a reprisal has been taken against him or her may file a written complaint with the Board.

32(2) The Board may refuse to accept the complaint where, in the opinion of the Board,

(a) the complainant has unduly delayed in filing the complaint after the occurrence, or last occurrence, of the alleged reprisal, or

(b) the complaint is without merit or beyond the jurisdiction of the Board.

32(3) Where the Board accepts a complaint filed under this section, the Board shall refer the complaint to be dealt with by an adjudicator appointed by the Board.

Further information

33 The Board may, on its own motion or at the request of a party, direct that the information in any complaint filed under section 32 or reply filed under section 34 be made more complete or specific and, if the party so directed fails to comply with the direction within such time as the Board may determine, the Board may strike out from the complaint or reply, the information or so much of it that it considers to be incomplete or insufficiently specific.

Service of complaint and reply

34(1) The Secretary of the Board shall serve a copy of the complaint on the employer who is alleged to have taken the reprisal within 7 days after receiving a complaint.

34(2) An employer who is served with a copy of a written complaint under subsection (1) shall send a reply to the Board not later than 10 days after the employer was served with the copy of the complaint.

34(3) Where the Board appoints an adjudicator, the Secretary of the Board shall send to the adjudicator a copy of the complaint and a copy of the reply as soon as practicable.

34(4) The Chairperson of the Board may, upon application, extend the period of time for filing a reply under subsection (2), whether the application is made before or after the expiry of the time referred to in that subsection.

Representation of complainant

35 Where an employee or former employee has stated in a complaint filed under section 32 that he or she wishes to be assisted or represented by another person in the presentation of the complaint, the adjudicator shall serve on the person named by the employee or former employee

(a) a copy of any reply filed under section 34, and

(b) a notice of the hearing.

Notice of hearing

36 The adjudicator shall serve upon the complainant and the employer a notice of hearing within 30 days after his or her appointment by the Board.

Adjudication

37(1) An adjudicator shall give full opportunity to both parties to the complaint to present evidence and make representations at the hearing.

37(2) An adjudicator has in relation to the hearing or determination of any complaint that the adjudicator may hear or determine all of the powers, privileges and immunities conferred on commissioners under the Inquiries Act.

Decision of adjudicator

38(1) The decision of an adjudicator shall contain

(a) a summary statement of the complaint,

(b) a summary of the representations of the parties,

(d) the reasons for the decision.

38(2) A decision made by an adjudicator shall be signed by the adjudicator and rendered within 30 days after a hearing unless the parties agree to an extension or the time is extended by the Chairperson of the Board.

Order of adjudicator

39(1) Where at the conclusion of a hearing, the adjudicator finds that a reprisal has occurred, he or she may order the employer

(a) to cease an activity that constitutes the reprisal,

(b) to rectify any harm caused by the reprisal,

(c) to restore a complainant adversely affected by the reprisal to the position he or she would have been in, but for the reprisal,

(d) to reinstate a complainant who has been removed from a position of employment,

(e) to compensate a complainant adversely affected by the reprisal for any consequent expenditure, financial loss or deprivation of benefit, in such amount as the adjudicator considers just and appropriate, and

(f) to do or refrain from doing anything in order to remedy any consequence of the reprisal.

39(2) The adjudicator shall

(a) send a copy of the decision to each party and his or her representative, and

(b) deposit a copy of the decision with the Board.

39(3) Where a decision on any complaint referred to adjudication requires any action by or on the part of the employer, the employer shall take such action.

Expenses of adjudication

40(1) The employer and the complainant shall each pay one-half of the remuneration and expenses of the adjudicator.

40(2) Where, in the opinion of the Board, special circumstances exist, the remuneration and expenses of the adjudicator may be paid in whole or in part by the Board.

Enforcement of order

41 Where any order made under section 39 directs some action to be taken and is not complied with within the period specified in the order for the taking of such action, any person affected by the order may file a copy of the order in The Court of Queen’s Bench of New Brunswick, whereupon the order shall be entered as an order of that court and is enforceable as such.

Evidence not compellable

42 No member of the Board, adjudicator or officer or employee of or person appointed by the Board shall be required to give evidence in any civil action, suit or other proceeding respecting information obtained in the discharge of his or her duties under this Act.

Support for adjudicator

43 The Board may provide an adjudicator with quarters and staff and such other facilities as are necessary to enable the adjudicator to carry out his or her functions under this Act.

Service of documents

44(1) Any notice or document that is to be given or served upon any person is sufficiently given or served if it is delivered personally or if it is sent by prepaid mail or prepaid courier

(a) in the case of an employer, to the chief executive of the appropriate portion of the public service, and

(b) in the case of a complainant, to the address for service provided in the complaint filed under section 32.

44(2) Service by prepaid mail or prepaid courier shall be deemed to be effected 10 days after the notice or other document was deposited in the mail or delivered to the courier.

GENERAL

Employees and assistants of Commissioner

45(1) The Commissioner may appoint such employees and assistants as he or she considers necessary for the carrying out of his or her functions and duties under this Act.

45(2) Before performing any functions or duties under this Act, a person appointed under subsection (1) shall take an oath, administered by the Commissioner, that he or she will not divulge any information received by him or her under this Act, except for the purpose of giving effect to this Act.

45(3) The Public Service Superannuation Act applies to all persons employed in the Office of the Conflict of Interest Commissioner under this Act.

45(4) All persons employed in the Office of the Conflict of Interest Commissioner under this Act may participate in and receive benefits under any health, life, disability or other insurance plan available to employees within the public service, in accordance with the terms upon which the right to participate and receive benefits may from time to time be extended to persons employed in the Office of the Conflict of Interest Commissioner.

Delegation of authority

46(1) The Commissioner may, in writing under his or her signature, delegate to any person any of his or her powers under this Act, except the power of delegation and the power to make a report under this Act.

46(2) A person purporting to exercise power of the Commissioner by virtue of a delegation under subsection (1) shall produce evidence of his or her authority to exercise that power when required to do so.

Evidence not compellable

47 The Commissioner or any person holding any office or appointment under the Commissioner pursuant to this Act shall not be called to give evidence in any court or in any proceedings of a judicial nature in respect of anything coming to his or her knowledge in the exercise of any of his or her functions under this Act whether or not that function was within his or her jurisdiction.

Effect of want of form

48 No proceeding of the Commissioner is void for want of form and, except on the ground of lack of jurisdiction, no proceedings or decisions of the Commissioner shall be challenged, reviewed, quashed or called in question in any court.

Protection from liability

49 No action or proceeding may be brought against a supervisor, designated officer or chief executive, or the Commissioner, or a person acting on behalf of or under the direction of any of them, for anything done or not done, or for any neglect

(a) in the performance or intended performance of a duty under this Act, or

(b) in the exercise or intended exercise of a power under this Act,

unless the person was acting in bad faith.

Offences and penalties

50(1) No person shall, in seeking advice about making a disclosure, in making a disclosure, in making a claim of wrongdoing referred to in section 23, or during an investigation, knowingly make a false or misleading statement, orally or in writing, to a supervisor, designated officer, chief executive or the Commissioner, or to any person acting on behalf of or under the direction of any of them.

50(2) No person shall willfully obstruct a supervisor, designated officer or chief executive or the Commissioner, or any person acting on behalf of or under the direction of any of them, in the performance of a duty under this Act.

50(3) No person shall, knowing that a document or thing is likely to be relevant to an investigation under this Act,

(a) destroy, mutilate or alter the document or thing,

(b) falsify the document or make a false document,

(d) direct, counsel or cause, in any manner, a person to do anything mentioned in paragraphs (a) to (c).

50(4) A person who violates or fails to comply with subsection (1), (2) or (3) commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category E offence.

50(5) A prosecution under this Act shall be commenced not later than one year after the day the alleged offence was committed.

Regulations

51 The Lieutenant-Governor in Council may make regulations

(a) for the purpose of section 6, respecting the procedures to be followed in managing and investigating disclosures and reporting the outcome of investigations, including setting time periods for action;

(b) exempting Acts or regulations from the application of section 15 where the Lieutenant-Governor in Council is of the opinion that the exemption is in the public interest;

(d) defining any word or phrase used but not defined in this Act;

(e) respecting any other matter that the Lieutenant-Governor in Council considers necessary or advisable to carry out the purposes of this Act.

COMMENCEMENT

Commencement

52 This Act comes into force on July 1, 2008.