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w w w . C A N A D I A N L a w y e r m a g . c o m M a y 2 0 1 4 47 such as Federal Accountability Initiative for Reform lament the effectiveness of whistleblowing legislation. FAIR asserts whistle- blowers are significantly worse off today than a decade ago. The Ottawa-based organization contends common law rights have been narrowed and whistleblower laws have forced "truth-tellers" into secretive administrative procedures that deny them due process, facilitate rather than prevent reprisals, and seem designed to keep damaging disclosures from public view. "I don't see a good faith effort here — that is the bottom line," says FAIR's executive director David Hutton. "If you are going to get the allegations of wrongdo- ing properly investigated and protect the whistleblower you need really strong well-designed laws and an effective administration, and even then it's never going to be easy to be a whistleblower. But these laws are riddled with loopholes, like Swiss cheese." The federal law, which establishes a regime for allegations of wrongdoing to be investigated and for whistleblowers to seek protection from reprisals, has been criticized for being too narrow in scope. Besides wholly or partially excluding national security and intelligence departments, the federal whistleblow- ing law does not allow government misconduct involving the private sector to be investigated nor does it allow investigations into misconduct involving former public servants. What's more, critics contend the Public Sector Integrity Commissioner, whose role is to investigate allegations of wrongdoing and to protect federal government whistleblowers from reprisals, has too much discretionary power to decide the fate of disclosures and com- plaints of reprisals. If wrongdoing is found to have occurred, the commissioner can make recommendations to chief executives concerning corrective measures and will report the finding to Parliament within 60 days of informing the chief executive. "When you are the decision-maker it is nice to have as much discretion as possible," acknowledges Integrity Commissioner Mario Dion. "But I can appreciate from the point of view of dis- closure that a bit more clarity would be reassuring." In fact, Auditor General Michael Ferguson has been inves- tigating two complaints against the Dion's office and quietly issued a damning report last month against Dion, finding "gross mismanagement" of two separate case files. In response to Fergu- son's reports, Hutton says: "The auditor general's recent findings provide more evidence that the problems in Dion's office are sys- temic rather than isolated incidents. They mirror what we — and others — have heard from literally dozens of whistleblowers and their lawyers who have tried to use this agency: that this office is a 'black hole' into which they deposit serious allegations and rarely hear back. They are given false assurances, treated with disrespect, and their allegations rarely seem to be properly investigated." For whistleblowers, it would be reassuring to dispel the notion that disclosures of wrongdoing and complaints of reprisals are not taken seriously, says Ottawa lawyer Michel Drapeau. Between the year it was established in 2007 and 2013, the commissioner's office received 1,365 inquires, 434 of which were followed by formal dis- closures, leading to 55 investigations, 34 of which were completed. All told, eight cases of wrongdoing have so far been reported to Parliament and six applications over complaints of reprisals were referred to an administrative body created to adjudicate complaints of reprisal. "In a bureaucracy that has almost 400,000 bureaucrats, it is absolutely amazing that you have such a miniscule number of people that come knocking at the door of the Integrity Commis- sioner, and to have the kind of results that it has had up to now." He speculates, as have others, the office is still smarting from the scandal-plagued helmsmanship of Christiane Ouimet, who sud- denly resigned days before a scathing report by the then-auditor general of Canada Sheila Fraser. "The process, in its infancy, was not covered by glory when there was no complaint that was retained by then-commissioner madame Ouimet," says Drapeau. Ottawa lawyer David Yazbeck, who is working on some high- profile whistleblower cases, is prepared to give the Integrity Com- missioner and the tribunal that adjudicates complaints of reprisals time. "If you review the cases from the tribunal, you can see the tribunal is very keen on developing a rich and thoughtful set of jurisprudence, which signals an interest in establishing some broad principles at the outset." That doesn't mean there aren't issues to be addressed. Its investigative process, for one, has to be far more rigorous, says Yazbeck. A Federal Court of Canada ruling in Char- bel El-Helou v. Courts Administration Service allowed for judicial review after it held the investigation by the Office of the Integ- rity Commissioner was not fair, something Dion claims has been addressed following the judgment. "Since that decision, we always www.kuretzkyvassos.com Tel: (416) 865-0504 BARRY KURETZKY AND GEORGE VASSOS LEXPERT ® RANKED SINCE 1997 AND SELECTED TO BE IN "BEST LAWYERS IN CANADA" ntitled-1 1 13-12-04 9:49 AM

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