Whistleblowing law still not good enough: ombudsman

The Yukon government has tabled long-awaited whistleblower legislation, but it still needs some tweaking, says the territory's ombudsman. Diane McLeod-McKay released her comments on the law this week.

The Yukon government has tabled long-awaited whistleblower legislation, but it still needs some tweaking, says the territory’s ombudsman.

Diane McLeod-McKay released her comments on the law this week.

The Public Interest Disclosure of Wrongdoing Act is supposed to protect Yukon government employees who speak out against corruption and wrongdoing in the public service.

An earlier discussion document suggested that the commissioner responsible for investigating allegations would only have the power to make recommendations to the public body where the wrongdoing took place.

If, for example, a public servant was fired for exposing a corrupt boss, the commissioner would only have the power to suggest to that same boss that the employer get her job back and be compensated for the lost work.

That wasn’t good enough, McLeod-McKay said earlier this year.

And indeed the government has made changes in the tabled legislation so that binding orders are possible.

If the public entity does not agree with the commissioner’s recommendation, then the commission can refer the matter to an arbitrator. That arbitrator would then investigate and have the power to make a binding order.

“That should at least give public service employees some comfort knowing that if they do make a wrongdoing disclosure and they are reprised against, that they will have a binding order if necessary,” said McLeod-McKay in an interview Tuesday.

But an issue remains.

In its current form, the law gives no time limit for the government to implement the commissioner’s recommendations, after it has agreed to them.

It must only follow through “as soon as is reasonably practicable,” according to the act.

“I think that’s a bit of a loose end,” said McLeod-McKay.

Remedying a situation where an employee has been wrongfully punished is “very serious,” and there should be a deadline to comply, she said. Further, the commissioner must have the power to refer to an arbitrator if that deadline is not met.

Another issue with the act are the strict limitations on going public with a concern, said McLeod-McKay.

“It makes it nearly impossible for an individual to be able to publicly disclose in the event of an imminent risk of harm.”

Not only must there be a specific and immediate threat that makes it impossible to disclose to a supervisor first, but the employee must disclose to the appropriate law enforcement agency, and that disclosure is not protected if the employees breaks any law in doing so.

Asking an employee to ensure that no law is broken is unreasonable in an urgent situation of potential danger, said McLeod-McKay.

“I don’t think an individual would actually go forward with that kind of a disclosure because the consequences are, if you get it wrong, you’re not protected by the act.”

The wording should be changed so that an employee should not knowingly break any laws when making a disclosure, she said.

Further, the law as tabled allows for future regulations to limit the commissioner’s power to investigate.

“I don’t think that should be allowed,” said McLeod-McKay.

That could impede a proper investigation, and those powers should be set by law, she said.

It remains to be seen if this sort of legislation will accomplish its goals, not only in the Yukon but across the country, the ombudsman said.

But the Federal Accountability Initiative for Reform (FAIR), an organization that has advocated for Canadian whistleblowers since 1998, said this country’s whistleblower protection laws are not only ineffective but harmful.

The laws are structured to silence whistleblowers, not protect them, said David Hutton, the group’s executive director, in an interview with the News earlier this year.

“It just becomes a black hole where whistleblowers go and their allegations die, and they die with them,” he said.

“Whistleblowers in Canada today are significantly worse off than 10-15 years ago: their common law rights have been narrowed and the whistleblower laws that are claimed to protect them do the opposite, forcing them into secretive administrative procedures that deny them due process, facilitate rather than prevent reprisals, and seem designed to keep damaging disclosures hidden from public view,” Hutton wrote in a 2013 report produced for an Alberta think tank.

Contact Jacqueline Ronson at

jronson@yukon-news.com

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

During our recent conversation, John Nicholson showed me snapshots of his time working on the Yukon riverboats 70 years ago. (Michael Gates)
History Hunter: Yukon man relives the riverboat days after seven decades

John Nicholson took summer work on Yukon steamers in the 1950s

NDP candidate Annie Blake, left, and Liberal incumbent Pauline Frost. (Submitted photos)
Official recount confirms tie vote in Vuntut Gwitchin riding

Both candidates Pauline Frost and Annie Blake are still standing with 78 votes each

Artist’s rendering of a Dairy Queen drive-thru. At its April 13 meeting, Whitehorse city council approved a zoning change to allow a drive-thru at 107 Range Road. Developers sought the change to build a Dairy Queen there. (Submitted)
Drive-thru approved by Whitehorse city council at 107 Range Road

Rezoning could pave the way for a Dairy Queen

xx
WYATT’S WORLD

Wyatt’s World for April 14, 2021.… Continue reading

École Whitehorse Elementary Grade 7 students Yumi Traynor and Oscar Wolosewich participated in the Civix Student Vote in Whitehorse on April 12. (Haley Ritchie/Yukon News)
Yukon Student Vote chooses Yukon Party government; NDP take popular vote

The initiative is organized by national non-profit CIVIX

Yvonne Clarke is the newly elected Yukon Party MLA for Porter Creek Centre. (Submitted/Yukon Party)
Yvonne Clarke elected as first Filipina MLA in the Yukon Legislative Assembly

Clarke beat incumbent Liberal Paolo Gallina in Porter Creek Centre

Emily Tredger at NDP election night headquarters after winning the Whitehorse Centre riding. (Stephanie Waddell/Yukon News)
Emily Tredger takes Whitehorse Centre for NDP

MLA-elect ready to get to work in new role

Chief Medical Officer of Health Dr. Brendan Hanley. (Crystal Schick/Yukon News)
Two new cases of COVID-19 variant identified in territory

“If variants were to get out of control in the Yukon, the impact could be serious.”

lwtters
Today’s Mailbox: Rent freezes and the youth vote

Dear Editor, I read the article regarding the recommendations by the Yukon… Continue reading

Point-in-Time homeless count planned this month

Volunteers will count those in shelters, short-term housing and without shelter in a 24-hour period.

The Yukon’s new ATIPP Act came into effect on April 1. Yukoners can submit ATIPP requests online or at the Legislative Assembly building. (Gabrielle Plonka/Yukon News file)
New ATIPP Act in effect as of April 1

The changes promise increased government transparency

A new conservancy in northern B.C. is adjacent to Mount Edziza Provincial Park. (Courtesy BC Parks)
Ice Mountain Lands near Telegraph Creek, B.C., granted conservancy protection

The conservancy is the first step in a multi-year Tahltan Stewardship Initiative

Most Read