Federal Court ruling highlights lack of whistleblower protection for federal government employees – likely reason why CFIA inspectors didn’t blow whistle on XL Foods

Tuesday, October 16, 2012

OTTAWA—Today civil society organizations welcomed a federal judge’s condemnation of shoddy investigations conducted by the government’s whistleblower watchdog. Unfortunately this is not an isolated case, they say, and the agency’s failure may have contributed to the inaction that led to the XL Foods disaster.

In the court ruling Madam Justice Mactavish found that the Public Sector Integrity Commissioner’s investigators made so many mistakes that this amounted to a ‘clear breach of the common law duty of procedural fairness’. Key witnesses were never interviewed and PSIC ‘failed to investigate obviously crucial evidence’. The whistleblower was kept in the dark regarding the results of the investigation and given no opportunity to see or comment on the report before a decision was made – in spite of promises that he could do so. Although the investigation took an inordinate length of time (21 months) the judge found that it was neither thorough nor fair.

“PSIC’s ineffectiveness has serious consequences for the public – like the XL Foods recall” said David Hutton, executive director of Federal Accountability Initiative for Reform (FAIR). ”This entire fiasco could likely have been avoided if the CFIA inspectors had believed that they could bypass their bosses and safely report their concerns to someone independent – and that action would be taken. But the judge’s ruling confirms that they had good reason to fear that their concerns might not be investigated properly by PSIC, and that they would not be protected from the reprisals that would surely follow.”

Unfortunately the situation the Federal Court ruled appears typical of how PSIC treats those it is charged with protecting. Since the agency was created, whistleblower organizations like FAIR and Canadians for Accountability have received calls from more than 30 public servants (and their lawyers) trying to deal with the agency. The judge’s findings closely mirror these people’s frustrations.

“Whistleblowers consistently tell us that PSIC is a black hole into which they pour serious allegations – and hear nothing back” said Hutton. “They are kept in the dark about what’s happening and given false assurances. After hearing nothing for months they finally receive a rejection letter written in bureaucratic legalese. They have no idea of how this decision was made or based on what evidence, and Integrity Commissioner Mario Dion and his staff aren’t telling – since this would apparently ‘violate the privacy’ of the alleged wrongdoers.”

“You cannot go to PSIC simply on the basis that you’ve seen something that’s clearly wrong” said Allan Cutler. “You need a lawyer just to complete their application form – to help you figure out which sections of the Act are applicable and what statutes may have been violated. Courageous people, who are putting their careers on the line to protect the public, are met with disrespect and bureaucratic obstacles.”

“The court ruling and the XL Foods fiasco show clearly that the federal government must stop being negligent and immediately launch the illegally overdue review of the federal whistleblower protection law, and ensure the law is changed to require the Integrity Commissioner to actually protect whistleblowers in every case,” said Tyler Sommers, Coordinator of Democracy Watch.

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Contact Information:

David Hutton, Executive Director, FAIR (Federal Accountability Initiative for Reform) (613) 567-1511

Allan Cutler, President, Canadians for Accountability: (613) 863-4671

Ian Bron, Managing Director, Canadians for Accountability: (613) 304-8049

Tyler Sommers, Coordinator of Democracy Watch and Chair of the Open Government Coalition: (613) 241-5179

Democracy Watch’s Government Ethics Campaign