Canadian Lawyer

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 49 because it held an employee's duty of loyalty and the public's interest in whistleblowing is best reconciled with the up-the-ladder approach. Under this approach, "loyal" employees are encouraged to resolve the problems internally before going public. "The definition or circumstances in which people could engage in whistleblowing hasn't changed much since the SCC Fraser judgment," says Yazbeck. "And normally in most cases the up-the-ladder approach makes sense. That is the broad consensus." In practical terms, that means whistle- blowers can publicly voice a disclosure of wrongdoing only under exceptional cir- cumstances if they want to take advantage of protections afforded by employment and whistleblowing laws, says Frédéric Massé, a labour lawyer with Borden Ladner Gervais LLP. Employers cannot take reprisals if the whistleblower made a disclosure of wrong- doing that was based on facts and the "facts were true," if it was made in good faith and in a respectable manner towards others, if the up-the-ladder approach was used, and if the disclosure of wrongdoing was of public interest. "Whistleblowing rests on the tension between two principles: the employee's duty of loyalty and their freedom of expression under the Charter," explains Massé. "If a whistleblower meets those four criteria, an employer normally would not be able to sanction a whistle- blower, in spite of the fact that an employee has a duty of loyalty." Much more should be done to protect whistleblowers from reprisals, beginning with shifting the onus to employers to demonstrate actions taken against whistle- blowers did not arise from a disclosure, says Richard Perron, a lawyer and head of the Syndicat de professionnelles et profes- sionnels du gouvernment du Québec, a union that recently published a 22-page report calling for a whistleblower law in Quebec. Perron also believes whistleblow- ers who suffer reprisals should be able to seek redress, something that can't be done in Canada. Hutton concurs. "What needs to be done is to provide a remedy for whis- tleblowers who suffer reprisals, and this is where the laws fall down," says Hutton. "All of these laws basically focus on the disclo- sure of wrongdoing and the whistleblower protections are kind of an afterthought." In the meantime, Schmidt is bracing himself for a legal battle that may prove to be a battle of attrition. And he appears to have no intention of backing down. "I was not content to go along with what I saw as illegal conduct because my loyalty as an employee was owed to the state, not to them," says Schmidt over a cup of coffee at a café in Wakefield, Que., a picturesque village 35 minutes north of Ottawa. "And my duty as a lawyer, my professional duty, is owed to the client, not to the instructing officers of my client — and the client is the state. That's how I understand it. My hope is we can move on to trial fairly quickly because these are issues that really need to be addressed." In spite of the steep price he has paid, Schmidt can claim a victory of sorts: He has successfully brought an issue to the public spotlight. Labour & employment issues can pop any time. When they do, we can help. We're one of Canada's leading employment and labour law firms assisting employers across Canada. Our industry-leading expertise and 24-hour service means our clients are never alone or caught off-guard. If it's about a workplace issue, we're the only call you need to make. Ranked In Leading Firm CHAMBERS GLOBAL 2014 RANKED Main 416.603.0700 24 Hour 416.420.0738 www.sherrardkuzz.com @sherrardkuzz ntitled-1 1 14-04-25 8:23 AM

• Cover