Whistleblowing can strengthen the integrity and accountability of public and private actors in our society, and has been described as “by far the most effective single mechanism available for uncovering wrongdoing.” In this regard, whistleblowers play a critical role in a wide range of efforts to remedy wrongdoings, from returning ill-gotten gains to defrauded investors, to uncovering gross misuses of taxpayers’ dollars. The US Securities Exchange Commission for example, has ordered over $901 million in monetary sanctions for the disgorgement of ill-gotten gains since 2010.
Whistleblowers rarely come forward with frivolous motives; rather, they come forward because they feel a moral obligation to do what is right. Unfortunately, whistleblowers face significant personal and professional risk when blowing the whistle due to employer reprisal. A reprisal occurs when a whistleblower’s employer directly or indirectly places the whistleblower at a disadvantage because he/she/they made a disclosure. This can include demotions, suspensions, terminations, or in the case of contractors, blacklisting.
Whistleblowers commonly face reprisals for their disclosures. For example, Sylvie Therrien, a former Employment Insurance fraud investigator, was terminated after blowing the whistle on unsavoury investigative tactics encouraged by her supervisors. Don Garrett, who was contracted to replace the sinks and toilets in a prison, was blacklisted after blowing the whistle on an asbestos contamination in the prison. In short, protection against reprisals is a requirement for effective whistleblower laws, in order to both encourage disclosures of wrongdoings and protect whistleblowers, who are providing a valuable service to society, from reprisals.
On 25 April 2018, British Columbia introduced Bill 28 – 2018: Public Interest Disclosure Act (PIDA). The PIDA aims to encourage employees in ministries, government bodies and public offices to report serious wrongdoings, and to protect them from reprisals in connection with their reporting. B.C. is one of the last jurisdictions in Canada to adopt a stand-alone whistleblower legislation. The development of the PIDA is not only necessary to bring B.C. to the same legislative standard as other provinces, but further represents an international obligation to develop and implement effective and coordinated anti-corruption policies under Article 5 of the United Nations Convention Against Corruption.
The PIDA is a major development in BC’s commitment to improving the efficacy of public systems, and serves to bolster public confidence in these systems. Significantly, the PIDA requires provincial ministries, government bodies, and public offices to develop internal disclosure procedures, protect whistleblowers from reprisals, and allow whistleblowers to freely pursue civil remedies. The development of the PIDA is a meaningful milestone for whistleblower protection in BC and should be celebrated, however, the burden of proof for whistleblowers in reprisal complaints is critically flawed.
Under the PIDA, whistleblowers may make a complaint of reprisal to the Ombudsperson if their employer takes reprisal actions against them. To be successful, whistleblowers themselves must prove that their disclosure was the sole reason for the reprisal action taken against them by their employer. This means that an employer will be able to justify the reprisal as long as it demonstrates that the disclosure was among one of a variety of other reasons for taking reprisal action against the whistleblower. If the employer argues for instance, that the reprisal action was taken not only because of the disclosure, but also because the whistleblower missed a deadline for an assignment, the reprisal would be justified.
PIDA’s burden of proof makes it nearly impossible for a reprisal complaint to succeed because it is rare to have direct evidence of reprisals (which are frequently subtle and insidious), and employers can easily escape liability. This may create a chilling effect where whistleblowers become dis-incentivized from making disclosures due to fears of reprisal without any recourse of relief. Such a chilling effect already exists among federal public service employees, as illustrated by the 2017 Public Service Employee Survey – according to that survey, approximately 45% of federal public service do not file formal complaints about harassment or discrimination experienced in their workplace because they are afraid of reprisal.
Whistleblower laws in other countries, including Ireland, the United Kingdom, the United States, and Serbia, have implemented a reverse burden of proof for reprisal complaints to address these issues. The test for reprisal complaints with this reversed burden is:
- the complainant makes a prima facie case by proving that their disclosure was a contributing factor in the reprisal action, and
- the burden then shifts onto the employer to produce evidence to defend itself (e.g.: it would have taken the same disciplinary action alleged to be reprisal for independent, legitimate reasons in the absence of the disclosure)
Reversing the burden of proof for reprisal complaints has been regarded as a just and fair solution to this issue, and has been proven to be effective in foreign jurisdictions. In the UK, a dismissed employee is presumed to have been unfairly dismissed if the reason alleged for the dismissal is that the employee made a protected disclosure. This effectively requires the employer to rebut this presumption in its defence. In the UK, approximately 27% of reprisal claims have been successful between 2000 and 2012, in comparison to 0% in Canada under the federal Public Servants Disclosure Protection Act. In the US, the Whistleblower Protection Act (US WPA) was amended in 1989 such that the employee must only demonstrate their disclosure of wrongdoing was a contributing factor in the reprisal action. The burden of proving that the reprisal action was not the result of whistleblowing thus falls to the employer. Since the amendment, the rate of success on the merits of reprisal complaints under the US WPA has increased from between 1-5% annually to between 25-33%. The aftermath of the amendment of the US WPA suggests that a high burden of proof may have erroneously precluded otherwise meritorious reprisal complaints from seeing the light of day.
The burden of proof for reprisal complaints under the current version of the PIDA undermines the PIDA’s underlying purpose – to encourage public sector employees to report wrongdoings and to protect them from reprisals in connection with such reporting – by making it practically impossible for whistleblowers to enforce their right to protection from reprisals. In light of the successes that have come with reversing the burden of proof in the UK and the US, the PIDA should be amended to reflect best practices and ensure BC’s whistleblowers are sufficiently protected.
Chris Seo is a second-year student at the Peter A. Allard School of Law, and a clinician in the International Justice and Human Rights Clinic. He is currently researching best practices in whistleblower laws around the world.