Investigation into reprisals ‘not sufficient,’ ‘puzzling’: Court

Whistleblower’s allegations not treated fairly by integrity commissioner

Despite a 21-month investigation, a whistleblower’s allegations of reprisals were not properly looked into by the Office of the Public Sector Integrity Commissioner (OPSIC), the Federal Court has ruled.

“Despite the very lengthy amount of time during which this matter was under investigation, the investigation was not sufficiently thorough,” said Anne Mactavish, the Federal Court trial judge who made the ruling. “The investigator failed to investigate obviously crucial evidence.”

This is one of the first cases looking at the whole question of the conduct of investigations of reprisal under the Public Servants Disclosure Protection Act (PSDPA), said David Yazbeck, a partner at law firm Raven, Cameron, Ballantyne & Yazbeck in Ottawa.

While the act is vague, there is an obligation to conduct these processes in a manner consistent with natural justice or procedural fairness, he said. “There is still some law on the point which is really clear on what ought to be done in these circumstances.”

Whistleblowers have spoken of a mentality at the commissioner’s office that is suspicious and perhaps even hostile, said David Hutton, executive director at FAIR (Federal Accountability Initiative for Reform) in Ottawa.

“I was very glad to hear the judge set out in very blunt, plain English what was going on here and how wrong it was, so that was refreshing. But bear in mind that this is no guarantee that there’ll be any change in the situation.”

Alleged reprisals happened after disclosures

The case involved Charbel El-Helou, who worked in information technology services at the Courts Administration Service — which provides services to various federal courts — from 2006 to 2010. In 2009, he reported alleged misconduct by other employees but, as a result of his whistleblowing efforts, several of his superiors took reprisal actions again him, according to El-Helou.

In particular, he said they sought negative comments about his management style from his subordinates; temporarily reassigned him to other duties and took away his supervisory responsibilities; and withheld his security clearance at the top-secret level. He later alleged they also improperly interfered with his participation in a job competition and threatened to initiate a security investigation into his conduct unless he acknowledged he had breached his duty of loyalty to his employer.

El-Helou filed a reprisal complaint with OPSIC and, in the end, the investigation recommended one of his allegations be referred to the Public Servants Disclosure Protection Tribunal for a hearing while the other two were dismissed because the evidence did not establish reasonable grounds to believe the allegations.

So El-Helou sought a judicial review of the decision and, on Sept. 11, 2012, the Federal Court agreed, stating he was treated unfairly in the complaints process. In particular, it found the report was silent on El-Helou’s claim he was threatened with the prospect of a security investigation and two key witnesses were not interviewed, even though an investigator said these would be looked into.

And neither El-Helou nor any of the respondents were provided, as promised, with an opportunity to review or comment on the investigator’s report or the evidence before it was presented to the interim commissioner.

Basically, the court said the commissioner must re-open the investigation and interview all witnesses or alleged victims, and make sure procedural fairness is respected, so all parties are informed and given an opportunity to comment before a final decision is made, said Edith Lachapelle, a spokesperson at OPSIC.

Having a judicial review giving feedback is valuable when it comes to interpreting the new act and trying to implement it as best they can, she said. As to the process of procedural fairness, that’s common practice when it comes to disclosures, she said.

“There was a decision with regard to reprisals not to follow that because it was a different beast, if you want — it’s two different things,” said Lachapelle. “It was at the time a deliberate decision, but with no intent of being unfair to anyone.”

In delivering her ruling, Mactavish admitted the PSDPA does not provide much in the way of guidance with respect to the conduct of investigations.

When the act came in, it wasn’t perfect but it was the position of the Professional Institute of Public Service of Canada (PIPSC) that it was better to have something that was imperfect and work on it than to try to achieve something that was perfect, said Gary Corbett, president of the PIPSC in Ottawa.

“At the time, we were thinking ‘Let’s get something in to help whistleblowers and move the ball forward.’”

Although the act gives the integrity commissioner a lot of power to investigate wrongdoing, it gives him no special powers when it comes to reprisals, said Hutton. There is just a paragraph saying people should co-operate and the commissioner has the power to report them for not co-operating, he said.

“The definition of investigation in the act is an investigation of wrongdoing, so all the provisions that apply, all the powers and so on that apply to that investigation, don’t apply to investigation of reprisals.”

But the act states investigations should be “conducted as informally and expeditiously as possible,” said Yazbeck, who represented El-Helou, and it’s unclear why the investigation took almost two years.

“When you’re talking about a reprisal, it’s a pretty significant event. And when you look at what can be done as a result of a finding of reprisal, including giving relief to an employee and otherwise, even imposing discipline, for example, you’re always better off doing that as soon as possible.”

In this case, a turnover in investigators accounted for some of the delays, said Lachapelle, but there was also a four-month period when the parties attempted mediation. And there were also three allegations to look at.

“It’s my understanding some of them were pretty complex, they can take some time to dig through, and the first run-through looked at 10 witnesses, which can take some time as well,” she said. “In terms of common practice, it will always depend on the number of allegations, the complexities, the number of witnesses… there’s no real standard because of the different factors.”

It’s also not clear why some witnesses were neglected, said Yazbeck.

“There were at least a couple of examples of witnesses where the investigator at the time said, ‘I would interview witness X or Y’ and then it wasn’t done, and there was no explanation as to why it wasn’t done.”

It’s clear there was not enough documentation to explain some of the investigators’ decisions, said Lachapelle.

“That was another lesson learned from us — there’s not enough in writing to explain why,” she said. “The feedback we’re getting from that is to document more of the thinking process.”

It’s good to see this kind of check and balance in the system, said Corbett. OPSIC has had its problems and this ruling shows it’s going to be “held to the fire” to a certain extent, he said.

Going forward, the commissioner’s office now has a fairly clear statement of the principles and procedures of fairness that should be applied when looking into an allegation of reprisal, said Yazbeck.

“Certainly for Mr. El-Helou, it means that when his complaint gets re-investigated, then there’ll be more fairness. But it also means for anyone else who is either in the system with reprisal complaints or who may have complaints in the future which would be investigated, they’ll have the benefit of this ruling.”

However, the Federal Court ruling is now being appealed.

“Until we get further direction from the court, the whole file remains in obeyance, which means we’re not going to do further actions until we get direction from the court,” said Lachapelle.

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