Review of the Public Servants Disclosure Protection Act

Opening Statement to the Standing Committee on Government Operations and Estimates

Review of the Public Servants Disclosure Protection Act

21 February 2017

Michael Ferguson, CPA, CA
FCA (New Brunswick)
Auditor General of Canada

Mr. Chair, thank you for this opportunity to present our Office’s experience under the Public Servants Disclosure Protection Act. Joining me at the table is Andrew Hayes, Senior Legal Counsel for the Office.

Under section 14 of the Act, the Auditor General has the power to receive, review and investigate disclosures about wrongdoing on the part of the Office of the Public Sector Integrity Commissioner, or PSIC, officials. To date, we have received 27 disclosures of alleged wrongdoing by PSIC officials that have resulted in three completed investigations, one investigation that is still underway, and one performance audit.

In conducting our work, we have noted some limitations that exist within the Act. For example, we cannot investigate complaints of reprisals that come from PSIC employees and in the course of an investigation, we are not allowed to seek information from outside the public sector.

These limitations proved to be a problem in 2010, when we began investigating three disclosures received by our Office under the PSDPA. This caused us to convert our investigation into a performance audit, in order that we could fully examine allegations of reprisal, and obtain all the information we required. In our view, this illustrates why it is important that PSIC employees have the same avenues of recourse as other public servants.

We see two options if Parliament wishes to address the limitations we have noted.

The first option is to expand our mandate. We note that the Public Sector Integrity Commissioner has recommended that consideration be given to amending section 14 of the PSDPA. This would allow the Auditor General to investigate disclosures coming from the public concerning PSIC officials, and reprisal complaints made by PSIC employees, with all the related powers and duties of the Commissioner.

Our experience has been that PSDPA investigations are often complex and time consuming. An expansion of our mandate would likely increase the number of disclosures, with considerable impact on our resources. To take on this work, we would need additional funding or we would have to reduce the number of performance audits that we can do.

The second option is to consider an alternate model, such as that which exists for the Information Commissioner and the Privacy Commissioner. These agents have the ability to appoint an independent investigator to deal with complaints regarding their obligations under the Access to Information Act and the Privacy Act.

The committee should be aware that we did not pursue many of the complaints that we received, because they were disputes of decisions reached by the Commissioner. The correct approach for an individual to dispute a decision is to file an application for judicial review with the Federal Court, which we believe is appropriate.

Ultimately, it is up to Parliament to decide how it wishes to address the limitations we have noted under the Public Servants Disclosure Protection Act, and we will of course comply with whatever Parliament decides.

Mr. Chair, this concludes my opening statement. We would be pleased to answer any questions the Committee may have. Thank you.