As we approach the third scheduled review of the Public Interest Disclosure (Whistleblower Protection) Act (the Act), our office is preparing to support the legislated review process.
Periodic review is beneficial, contributing to a more dynamic, responsive, and effective legal framework that better serves Albertans. The Act states under section 37 that,
“Within 2 years after this Act comes into force and every 5 years after that, a special committee established by the Legislative Assembly must begin a comprehensive review of this Act and must submit to the Legislative Assembly, within one year after beginning the review, a report that includes any amendments recommended by the committee.”
This will be the third review since the Act came into effect in 2013.
The committee is tasked with reviewing the Act, receiving stakeholder feedback, and making recommendations. In previous reviews, our office has provided technical advice and recommendations for potential changes, at the committee’s invitation.
Strengthening Protections
One of the objectives of the Act is to create safe environments for employees to bring forth allegations of wrongdoing in accountable public sector organizations and professional workplaces. One area of concern
with the current legislation is the lack of protection from civil liability for individuals who disclose wrongdoing or participate in investigations. Gaps in protection from legal repercussions can create anxiety and deter potential whistleblowers from coming forward. The fear of legal consequences can outweigh the desire to report misconduct, compromising the effectiveness of the Act’s accountability mechanisms.
As important is the guarantee of confidentiality for whistleblowers or witnesses. This was highlighted in a recent Court of King’s Bench decision, which held the disclosure of whistleblower and witness identities during the judicial review:
“Nothing in PIDA indicates an intention by the Legislature to make its confidentiality provisions mandatory or peremptory¹.”
Further, we believe that protections provided under the Act should be broadened to provide a safer reporting environment. For example, non-employees, former employees and those who are only suspected of being whistleblowers are not protected under the Act; they should all be provided the same protections as employees and actual whistleblowers. The definition of what constitutes a “reprisal” should also be broadened. Currently, only adverse employment actions are considered to be reprisals; any form of retaliation, regardless of whether it is employment related should be considered a reprisal.
Efficiency, Effectiveness and Enhancing Scope
The public sector has changed considerably since the Act was last amended and changes came into effect on March 1, 2018. The current legislation does not encompass all public agencies, subsidiary health corporations, or publicly funded, private post-secondary institutions. While prescribed service providers are included, the necessary Regulation for their inclusion has yet to be established. These and other functional updates will improve the Act’s effectiveness and relevancy within the public sector to encompass all areas where whistleblower protections are needed.
Moving Forward
Looking ahead, our office will undertake an internal legislative review of the Act in the coming year. Additionally, we will engage with international experts in whistleblower law to ensure that proposed reforms align with globally recognized best practices.
The forthcoming recommendations will include the suggestions made by our office in 2020, reinforcing the need for comprehensive legislative reform. The Commissioner’s submission for the last legislative review is still available to the public here. The committee made 10 recommendations in their final report; however, none have been implemented to date. We look forward to working with the committee to enhance the functionality of the Act and strengthen protections for those who contribute to identifying and remedying wrongdoing in our public service.
1 Campbell v Alberta (Public Interest Commissioner), 2024 ABKB 269 at para 40.