Case Summaries 2020-2021

Investigation into the Alberta Energy Regulator

In our annual report last year, we summarized an investigation that resulted in a finding of wrongdoing by the former Chief Executive Officer and President of the Alberta Energy Regulator(AER). The story was widely reported in the media. The full report remains available on our website.

As was reported in the news at the time, investigations were subsequently initiated into the actions of other employees at the AER at the time the wrongdoing occurred. The Commissioner’s findings were released to the AER and the investigated individuals in December 2020. Subsequently, the AER reported on its website that no further wrongdoing was found.

The Commissioner’s investigations confirmed that the former CEO created an atmosphere at the AER that made it difficult for other executives to act in the best interests of the AER. Although employees under the direction of the CEO should have acted more strongly to protect the public interest, their actions did not meet the threshold of wrongdoing as defined by the Public Interest Disclosure (Whistleblower Protection) Act (the Act). Nevertheless, the Commissioner made five observations to the AER Board to further protect the public interest.

To summarize our full report, in October 2019, the Commissioner released a public report on significant and serious wrongdoing that took place within the AER. Our office received a whistleblower disclosure concerning the International Centre of Regulatory Excellence (ICORE), a side project established within the AER by its CEO and President at the time. The disclosure alleged the improper use of public funds and AER human resources to establish and operate ICORE. This alarmed AER staff who saw it as a diversion from the AER’s true mandate.

As a result of the investigation, the Commissioner recommended: the wrongdoer not be permitted future employment or contracts with the AER; the AER undertake a thorough internal review of actual time and resources expended on ICORE; and, take legal steps to collect any amounts outstanding. Further, she recommended the AER take measures to protect its intellectual property related to the training curriculum, and the new President and CEO address a culture within the AER that discouraged employees from voicing their concerns by overseeing a full review of the AER’s whistleblower policy and procedures.

At this time, there are no further investigations into the matter. If any lesson is to be learned, it is that CEOs have substantial influence and control over organizations and strong oversight mechanisms are required. In this case, the Act was effective in bringing wrongdoing to light.

The whistleblower remains protected. The person’s identity has never been revealed.

Whistleblower complaint triggers reversal of staffing decisions

It is important for employees to distinguish the difference between whistleblower complaints and all other internal complaint processes.

In one particular case, an employee who initially used an internal complaint process was able to obtain a more expeditious response and receive legislative protections once they utilized the Public Interest Disclosure (Whistleblower Protection) Act (the Act) to report their concerns.

A teacher at a private school contacted our office when a complaint about systemic harassment by the vice-principal did not yield the hoped-for response from administrators. Initially, the teacher reported the inappropriate behaviour to the principal but when the bullying and harassment continued, the teacher advanced the complaint to the superintendent of the school.

The allegations were partially addressed using internal processes, but a full investigation was not conducted, and the accused party continued to remain in the workgroup. This troubled the teacher who feared tension in the workplace and worried of the potential for future incidents. The teacher shared concerns that their position may be changed as the result of the internal complaint and the opportunity for advancement would no longer be available. The teacher had not, however, reported their concerns under the Act.

When the teacher contacted our office, we provided advice and guidance to use the school’s whistleblower procedure to report their concerns and ensure they receive the protections of the Act. Under our office’s supervision, a formal disclosure of wrongdoing was made, and the school initiated an investigation. Further, the school’s superintendent immediately put a stop to plans to change the teacher’s position. The matter was not returned to our office for further investigation.

As part of the general administration of their organization, employers regularly receive conduct and human resource related complaints. Bullying, harassment, and intimidation allegations can either be addressed using internal human resource complaint processes, or through the organization’s whistleblower procedure if the conduct is systemic and is impacting the culture of an organization. Where an employee is not confident internal human resource processes will address the wrongdoing or fears reprisal may occur, use of an organization’s whistleblower procedure will ensure the legislated protections of the Act apply.

In this case, the teacher’s use of the Act led to the appropriate measures being taken and triggered the protection provisions of the Act. Internal complaint mechanisms, including complaints made through human resource processes, serve an important function in addressing conduct and interpersonal matters involving employees. However, when the potential for wrongdoing exists, it is important for employees to understand that the Act is the only avenue where employees can receive legislative protections for voicing their concerns. We encourage any public sector employee with questions or concerns about reporting wrongdoing to visit our website or contact our office and immediately speak with an investigator.

Allegation of reprisal falls short of defined threshold

Employees are protected from reprisal when they use the Public Interest Disclosure (Whistleblower Protection) Act (the Act) to report wrongdoing.

The Commissioner’s office takes complaints of reprisal very seriously and receives a range of diverse complaints, each with a unique set of circumstances. The Commissioner’s office will investigate all complaints of reprisal; however, we recognize more education is needed within the public service on what constitutes a reprisal under the Act.

The owner of a private company contacted our office alleging he was unfairly denied access to compete for a contract in a government procurement process because his company did not have the proper insurance. The individual, a former public sector employee, complained of reprisal alleging the restrictions stemmed from previous dealings related to his former employment with a government department. The complainant felt the process was biased, and his company was being unfairly penalized.

The investigator assigned to the case interviewed the complainant and began to collect documents, past communications, and other relevant information for analysis. To advance in the investigative process, the allegations must “at first glance” meet the definition for reprisal as outlined in the Act.

After careful review, the investigator noted that the documents received included reference material and contract templates outlining standard requirements for all companies submitting a request for procurement. In Alberta, procurement laws provide public entities a legal framework to shape their policies and ensure businesses can compete on a level playing field. In this case, the requirement for general liability insurance was a standard expectation for all contractors and was included as part of the template contract provided to the business owner.

The investigation found no evidence of wrongdoing, reprisal or the existence of unfair restrictions in the procurement process.

The Public Interest Commissioner takes every complaint of reprisal the office receives seriously. The Act includes protection from reprisal actions for those making complaints or seeking advice under the provisions of the Act, including dismissal, discontinuation or elimination of a job, an unwanted transfer, or any measure that adversely affects or threatens to adversely affect the employee’s employment.

Any public sector employee suspecting wrongdoing may submit a complaint and give voice to concerns that they perceive to be troubling in nature. While not every complaint reaches the threshold for wrongdoing or reprisal, our investigators will take the time to explain our findings. This allows complainants the opportunity for closure and a better understanding of what constitutes public sector employee rights under the Act.

Whistleblower act protects person wrongfully accused

The protection provisions of the whistleblower protection act apply to whistleblowers and to those who may be wrongfully accused.

The Public Interest Commissioner received an anonymous complaint about a senior executive of a public entity involving an alleged criminal act. The serious allegation claimed the executive used a public entity-owned device to obtain and share private photographs of an unsuspecting subject without their consent. Anonymous complaints may be investigated based on the severity of the allegation involved.

The Commissioner’s investigation sought to determine whether an unlawful act did indeed occur. However, the accused reported directly to the existing designated officer — the normal first point of contact for our office within the public entity. This created the potential for a perceived conflict of interest should the Commissioner refer the matter to the designated officer. The investigator first had to identify an alternative contact at the public entity.

Understanding the situation, the public entity willingly engaged an appropriate stand-in for the designated officer to facilitate the requests made by our office. This cooperative approach helped the investigation progress quickly, preventing the accused from enduring a prolonged period of perceived scrutiny.

The investigator advised the accused person of the complaint and the device was immediately surrendered for forensic analysis by a digital evidence recovery expert. The expert searched almost 50,000 photographs, as well as chat applications for data sets containing the names of the colleagues included in the complaint. No evidence of the photograph was found, and there was no indication such an image had been shared or details of such an image discussed.

The investigator then conducted separate interviews with the colleagues of the accused indicated by the complainant to have witnessed the photos. The identities of these colleagues were never revealed to each other by our office.

Neither the interviews nor forensic examination of the device found information supporting the alleged wrongdoing. The lack of evidence to indicate guilt was sufficient to clear the executive.

The discretion and confidentiality demonstrated by our office in the investigation of this serious allegation safeguarded the reputations and careers of everyone involved. This same value and consideration of confidentiality is applied to every allegation we investigate, and we will continue to operate at this standard for all future investigations.

Designated officer leads effective public interest investigation

The handling of a complaint by the designated officer at a public school division shows how a public entity can conduct its own inquiries under the Public Interest Disclosure (Whistleblower Protection) Act (the Act).

Designated officers hold an important responsibility under the Act within public sector organizations. Similar to the Commissioner’s office, they are responsible for receiving and investigating complaints under the Act. The collaborative relationship between designated officers and the Commissioner’s office has helped advance a positive culture around whistleblower protection.

An educator complained to both the division and the Public Interest Commissioner about the activities of the principal of an elementary school. The division undertook to investigate the complaint and support the whistleblower. Therefore, the matter was referred to the division for investigation with the guidance and support of the Commissioner’s office.

The complaint was thoroughly investigated by the division, which ultimately found wrongdoing on the part of the principal:

   1. The principal was found to have grossly mismanaged public funds by illegitimately obtaining special education funding. While this action benefited the school and not the principal personally, the principal was accountable to oversee and adhere to Alberta Education and the division requirements.

   2. The principal grossly mismanaged the delivery of a public service by consistently failing to attend the school during the expected workday and failing to or misreporting their absences in most instances.

The designated officer took appropriate action by referring the matter to human resource specialists within the division for further assessment regarding the appropriate level of discipline for the principal.

In addition to addressing the principal’s mismanagement and remediation, further recommendations were aimed at improving the administration within the division. Applications for special program funding throughout the division are now audited on a regular basis and principals are required to supply the documentation needed to support requests.

Upon review of the investigation and the outcome, the Commissioner was satisfied that appropriate corrective measures had been taken by the division and no further action was required. This case was found to be a significant success for the school division, in that it demonstrated how management and employees can work together in the common interest of identifying and remedying wrongdoing within the organization. The school division is commended for its support of the whistleblower and its management of this matter.