Yukon has enacted new legislation to protect whistleblowers, joining a long list of Canadian provinces that have passed similar laws in recent years.
The new Public Interest Disclosure of Wrongdoing Act came into effect on Monday, and applies to public service employees. That includes employees of the territorial government and the legislative assembly, and of Crown corporations like the Yukon energy and hospital corporations.
The act “provides a clear framework for employees to make disclosures of wrongdoing in good faith, and for protecting them from acts of reprisal,” said Currie Dixon, the minister for the Public Service Commission, in a news release.
Under the new legislation, accusations of wrongdoing will be handled by the newly established office of the Public Interest Disclosure Commissioner. Diane McLeod-McKay, the new commissioner, said this law is particularly important for the Yukon. The territory’s small population means reprisals for whistleblowers can be especially severe.
“In Yukon, there aren’t a lot of employers,” she said. “Losing your job in government could mean that you’re moving.”
All Canadian provinces except Quebec, British Columbia, and Prince Edward Island have enacted some type of whistleblower protection in the last decade. But Yukon is the first territory to pass a similar law.
McLeod-McKay said the Yukon act is stronger than the legislation in some other jurisdictions. It allows whistleblowers to make a complaint to her office if they’ve been fired or demoted after their disclosure of wrongdoing. She can recommend the case to an arbitrator, who can order the employer to correct the reprisal.
“I was very pleased with that,” she said. “If I was an employee, then I would want that level of protection.”
She said that in Alberta and Saskatchewan, by contrast, commissioners can only make non-binding recommendations to employers.
But David Hutton, a whistleblower protection advocate and former executive director of the Federal Accountability Initiative for Reform, said whistleblower legislation across Canada is far too weak.
“This beaten path that the Yukon is following is a path that doesn’t lead anywhere,” he said. “The general outlook for whistleblowers in Canada is pretty bleak.”
Hutton said whistleblower protections in other provinces are rarely used, and that many provinces have never found any cases of wrongdoing since the laws were enacted.
He also said he’s “never heard of a single case of someone being sanctioned for taking reprisals against a whistleblower.”
He’s worked with around 400 whistleblowers, most of whom suffered some form of reprisal for their actions.
With respect to Yukon’s legislation, Hutton worries that the arbitration process may be too long and cumbersome to be of much use to whistleblowers who’ve suffered reprisals.
“You’ve got this massive imbalance of power and resources,” he said. “Legalistic-type processes that drag out and take months and years to complete are the kiss of death.”
Ideally, he said, the commissioner would have the power to issue binding orders herself, instead of having to refer cases to an arbitrator. He also pointed out that whistleblowers themselves cannot request arbitration. Instead, that power rests with the commissioner or the employer.
Hutton also said the compensation available to whistleblowers who’ve experienced reprisals is too limited under the new Yukon law. The arbitrator can order an employer to reinstate whistleblowers and reimburse them for direct financial losses. But he said there should also be compensation for pain and suffering and for future loss of income.
Cherrine Chow, a labour and employment lawyer in Toronto, said Canada is behind other countries like the U.S. when it comes to whistleblower protection.
“Canada has a tendency to move a little bit slower,” she said. “I suspect it’s because we’re a much smaller market, so these issues don’t arise as frequently.”
In the U.S., some whistleblowers are offered a financial reward for coming forward, which Chow said could work in Canada as well.
And in Australia, whistleblowers can go to the media if there isn’t an adequate investigation of the wrongdoing they report, which encourages employers to act swiftly and fairly.
According to Yukon’s new legislation, whistleblowers can only go public if there is an urgent threat to life, safety, or the environment, and if they have first received permission from law enforcement to approach the media.
Still, Hutton believes Yukon’s whistleblower law could be effective if the arbitration process works well.
“All it needs is for one or two whistleblowers to be successful and to get an appropriate remedy, and that sends a message,” he said.
McLeod-McKay said any public servants considering a disclosure of wrongdoing should contact her office to be sure they’re acting within their rights.
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