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4th Session, 40th Legislature

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Bill 40

THE PUBLIC INTEREST DISCLOSURE (WHISTLEBLOWER PROTECTION) AMENDMENT ACT


  Bilingual version (PDF) Explanatory Note

(Assented to                                         )

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

C.C.S.M. c. P217 amended

1           The Public Interest Disclosure (Whistleblower Protection) Act is amended by this Act.

2           Section 2 is amended

(a) by repealing the definitions "board" and "public service";

(b) by replacing the definition "employee" with the following:

"employee" means an employee, officer or board member of a public body. (« employé »)

(c) by adding the following definition:

"public body" means

(a) a department;

(b) a government body; and

(c) an office. (« organisme public »)

3           Section 3 is amended, in the part before clause (a), by striking out "the public service" and substituting "a public body".

4(1)        Subsection 5(1) is amended by striking out "department, government body or office" and substituting "public body".

4(2)        The following is added after subsection 5(2):

Ombudsman entitled to copy of procedures

5(3)        The chief executive must give a copy of the procedures established under subsection (1) to the Ombudsman on the Ombudsman's request.

Ombudsman may review procedures and make recommendations

5(4)        The Ombudsman may review the procedures to ensure that they comply with this Act and the regulations and may make recommendations respecting the procedures.

5           Section 6 is amended

(a) by adding "— who may be the chief executive —" after "senior official"; and

(b) by striking out "department, government body or office" and substituting "public body".

6           Subsection 7(1) is amended by striking out "department, government body or office" and substituting "public body".

7           Section 8 is replaced with the following:

Information about Act to be communicated

8           The chief executive must ensure that information about this Act and the disclosure procedures is widely communicated annually to the employees of the public body for which the chief executive is responsible.

8           Section 10 is amended by renumbering it as subsection 10(1) and by adding the following as subsection 10(2):

Supervisor must refer disclosure to the designated officer

10(2)       If an employee makes a disclosure to his or her supervisor, the supervisor must promptly refer the matter to the designated officer.

9           Section 13 is amended

(a) in the section heading of the English version, by striking out "department, etc." and substituting "public body"; and

(b) by striking out "department, government body or office" and substituting "public body".

10          The centred heading before section 18 is repealed.

11          Section 18 is renumbered as section 29.1 and is amended

(a) in the section heading for subsection (1), by striking out "Report" and substituting "Chief executive's report"; and

(b) in subsections (1) and (3), by striking out "department, government body or office" and substituting "public body".

12          The heading for Part 3 is replaced with "INVESTIGATIONS".

13          Section 19 is amended by striking out "department, government body or office" and substituting "public body".

14          The following is added after section 19:

Investigation by designated officer

19.1(1)     The designated officer is responsible for investigating a disclosure that is made to the employee's supervisor or to the designated officer.

Designated officer may consult

19.1(2)     A designated officer may consult regarding the management of an investigation with the Ombudsman, the chief executive and any other person the designated officer considers necessary for the purpose of the investigation.

15          Section 20 is replaced with the following:

Investigation by Ombudsman

20(1)       Subject to this section, the Ombudsman is responsible for investigating a disclosure that he or she receives under this Act.

Matter already being investigated

20(2)       The Ombudsman may decide not to investigate a disclosure if the subject matter is being investigated by a designated officer.

Referral to designated officer

20(3)       The Ombudsman may refer a disclosure to the designated officer if the Ombudsman believes that the matter could be dealt with more appropriately by the designated officer.

Ombudsman may inquire about status

20(4)       If the Ombudsman decides not to conduct an investigation under subsection (2) or refers a disclosure to the designated officer under subsection (3), the Ombudsman may ask the designated officer to inform the Ombudsman of the steps that the designated officer has taken or proposes to take to deal with the matter.

Referral to Auditor General

20(5)       The Ombudsman may refer a disclosure to the Auditor General if the Ombudsman believes that the matter could be dealt with more appropriately by the Auditor General in accordance with The Auditor General Act.

16(1)       Subsection 21(1) is amended by

(a) replacing everything before clause (a) with the following:

Decision not to investigate

21(1)       The designated officer or Ombudsman may decide not to investigate a disclosure, or may cease an investigation, if he or she is of the opinion that

(b) adding "or" at the end of clause (f).

16(2)       Subsections 21(2) and (3) are repealed.

16(3)       The following is added as subsection 21(4):

Informing person making disclosure

21(4)       If the designated officer or Ombudsman decides not to investigate or to cease investigating a disclosure, he or she shall inform the person making the disclosure of the decision. In the case of a decision by the designated officer, he or she shall also advise that the person may make a disclosure to the Ombudsman.

17(1)       Section 22 is amended by renumbering it as subsection 22(6) and by replacing the section heading with "Ombudsman's investigation".

17(2)       The following is added as subsections 22(1) to (5):

Manner in which investigation conducted

22(1)       An investigation is to be conducted as informally and expeditiously as possible.

Protecting right to procedural fairness and natural justice

22(2)       The person conducting an investigation must ensure that the right to procedural fairness and natural justice of all persons involved in the investigation is respected, including persons making disclosures, witnesses and persons alleged to be responsible for wrongdoings.

Protecting identity of persons involved in investigation

22(3)       The person conducting an investigation, and any other person involved in the management of a disclosure, must take reasonable steps to protect the identity of each person involved in the investigation, including a person making a disclosure, a witness and a person alleged to be responsible for a wrongdoing.

Designated officer must follow procedures

22(4)       A designated officer must conduct an investigation in accordance with the procedures established by the chief executive.

Records and information

22(5)       A designated officer may require an employee

(a) to produce to the designated officer any records in his or her possession or under his or her control that may be relevant to an investigation; and

(b) to be interviewed for the purpose of the investigation.

18          Section 23 is amended by

(a) adding "designated officer or" before "Ombudsman has reason"; and

(b) striking out "the Ombudsman may investigate" and substituting "he or she may investigate".

19(1)       Subsection 24(1) is amended

(a) in the section heading, by striking out "Ombudsman's"; and

(b) by adding "designated officer or" before "Ombudsman".

19(2)       Subsection 24(2) is replaced with the following:

Copy to chief executive

24(2)       The designated officer or Ombudsman must give a copy of the report to the responsible chief executive.

19(3)       The following is added after subsection 24(3):

Informing employee

24(4)       The designated officer or Ombudsman must inform the employee who made the disclosure of the results of the investigation. The designated officer or Ombudsman may do so in the manner and at the time he or she considers appropriate.

20(1)       Subsection 25(1) is replaced with the following:

Chief executive to notify Ombudsman of proposed steps

25(1)       The Ombudsman may ask the chief executive to inform him or her, within a specified time, of the steps taken or proposed to be taken to give effect to any recommendation the Ombudsman has made.

20(2)       Subsection 25(2) is amended

(a) by replacing the section heading with "Further report if steps not taken"; and

(b) in the part before clause (a), by striking out "department, government body or office" and substituting "public body".

21(1)       Subsection 26(1) is renumbered as subsection 29.2(1) and is amended

(a) by replacing the section heading with "Ombudsman's annual report"; and

(b) in clause (d), by striking out "department, government body or office" and substituting "public body".

21(2)       Subsection 26(2) is renumbered as subsection 29.2(2) and the French version is replaced with the following:

Dépôt du rapport devant l'Assemblée législative

29.2(2)     Le rapport est remis au président; celui-ci en dépose un exemplaire devant l'Assemblée législative dans les 15 jours suivant sa réception ou, si elle ne siège pas, au plus tard 15 jours après la reprise de ses travaux.

21(3)       Subsection 26(3) is renumbered as subsection 29.2(3).

22          The following is added after section 27:

Reprisal complaint to the Ombudsman

27.1(1)     An employee or former employee who alleges that a reprisal has been taken against him or her may make a written complaint to the Ombudsman.

Complaint to the Auditor General

27.1(2)     If the employer or former employer is the office of the Ombudsman, then the employee or former employee may make the complaint to the Auditor General.

Investigation of reprisal complaint

27.1(3)     The Ombudsman or Auditor General, as the case may be, must investigate and manage the complaint in the same manner as a disclosure. Sections 19 and 20 to 25 apply with necessary changes to the complaint.

23(1)       Subsection 28(1) is replaced with the following:

Further reprisal complaint to Manitoba Labour Board

28(1)       An employee or former employee who makes a complaint under section 27.1 may make a further complaint about the alleged reprisal to the Manitoba Labour Board if

(a) the Ombudsman or Auditor General decides not to investigate the reprisal complaint or ceases his or her investigation of the complaint without making a report;

(b) the employee or former employee is not satisfied with the findings or recommendations made by the Ombudsman or Auditor General respecting the reprisal; or

(c) 60 days have elapsed from the day on which the Ombudsman or Auditor General made recommendations respecting the reprisal and the employee or former employee is not satisfied with the steps taken to give effect to the recommendations.

New hearing

28(1.1)     The board must deal with a complaint under subsection (1) as a new complaint and not as a review of the investigation, decision or recommendations of the Ombudsman or Auditor General respecting the alleged reprisal.

23(2)       Subsection 28(2) is amended in the section heading by adding "reprisal" before "complaint".

24          Section 29 is amended by striking out "board under this Act" and substituting "Manitoba Labour Board under section 28".

25          The following is added after section 29:

PART 4.1

ANNUAL REPORTS

26(1)       Clause 30(2)(d) is amended by striking out "department, government body or office" and substituting "public body".

26(2)       Subsection 30(3) is amended by striking out ", other than subsection 21(3) (protection from reprisal)".

26(3)       Subsection 30(4) is replaced with the following:

Informing person who provided information

30(4)       The Ombudsman must inform the person who provided the information about the wrongdoing of the results of the investigation. The Ombudsman may do so in the manner and at the time he or she considers appropriate.

27          Subsection 31(4) is replaced with the following:

Meaning of "private sector employee"

31(4)       In this section, "private sector employee" means an employee or officer of a person or entity other than a public body.

28          Section 32 is amended

(a) in the part before clause (a), by striking out ", a government body or an office" and substituting "or a public body"; and

(b) in the part after clause (c), by striking out "the public service" and substituting "the government or a public body".

29          The following is added after section 32 and before the centred heading that follows it:

IDENTITY OF WHISTLEBLOWER NOT TO BE DISCLOSED

Identity of whistleblower protected in civil or administrative proceedings

32.1(1)     No person shall be required in a civil court proceeding or a proceeding before an administrative tribunal to produce any record, or disclose any information, that could reasonably be expected to reveal the identity of a person who has made a disclosure under this Act.

Court or tribunal may examine record

32.1(2)     A court or tribunal may order that a record be provided to it for the purpose of determining whether the record could reasonably be expected to reveal the identity of the person who made the disclosure.

Court or tribunal may order that information be severed

32.1(3)     If the information that could reasonably be expected to reveal the identity of the person can be severed from the record, a court or tribunal may order that the remainder of the record be produced.

Court or tribunal to take precautions against disclosing identity

32.1(4)     If a record is provided to a court or tribunal under subsection (2), the court or tribunal must take reasonable precautions to protect the identity of the person who made the disclosure. Examples of reasonable precautions include receiving representations ex parte, conducting hearings in private and examining records in private.

Not applicable to section 28 proceedings

32.1(5)     This section does not apply to a Manitoba Labour Board proceeding under section 28.

Transitional

32.1(6)     This section does not apply to a proceeding commenced before January 1, 2016.

30          The following is added before section 38:

Review of Act every five years

37.1(1)     The minister appointed by the Lieutenant Governor in Council to administer this Act must review the operation of this Act within five years after the day on which this section comes into force and at least once every five years after that review.

Tabling report in Assembly

37.1(2)     The minister must table a report on the review in the Legislative Assembly within one year after the review is undertaken, or within such further time as the Assembly may allow.

Consequential amendment, C.C.S.M. c. P35

31          Subsection 42.4(5) of The Personal Property Security Act is amended by striking out "section 18" and substituting "section 29.1".

Consequential amendment, C.C.S.M. c. R30

32          Subsection 13.2(5) of The Real Property Act is amended by striking out "section 18" and substituting "section 29.1".

Coming into force

33          This Act comes into force on January 1, 2016.

Explanatory Note

This Bill makes a number of changes to The Public Interest Disclosure (Whistleblower Protection) Act. The key changes are as follows.

Disclosures and Investigations

Disclosures are handled by a senior official within the public body (referred to as a "designated officer") or by the Ombudsman. In this Bill, their roles are clarified and the investigatory powers of a designated officer are strengthened. The amendments

  • authorize the Ombudsman to request, review, and provide recommendations concerning the disclosure procedures of a public body;
  • require information about the Act to be annually communicated to employees;
  • require a supervisor who receives a disclosure to promptly refer it to the designated officer;
  • clarify which disclosures are to be investigated by a designated officer and which by the Ombudsman;
  • clarify that a designated officer may consult with the Ombudsman, the chief executive of the public body or other persons as necessary for the conduct of an investigation;
  • specify that an investigator must take steps to protect the identity and procedural rights of all people involved in the investigation, including the whistleblower, a witness and a person alleged to have committed the wrongdoing;
  • specify the circumstances in which a designated officer or the Ombudsman may decide not to investigate a disclosure;
  • empower a designated officer to compel an employee to produce documents and be interviewed for the purpose of an investigation; and
  • allow the designated officer or Ombudsman to determine the manner in which the whistleblower is to be informed of the results of an investigation.

Reprisal Complaints

The powers of the Ombudsman are enhanced to receive and investigate reprisal complaints and to make recommendations to address acts or threats of reprisal. This Bill requires reprisal complaints to be made to the Ombudsman. The employee may file a further complaint about the alleged reprisal with the Manitoba Labour Board if he or she is not satisfied with the outcome of the Ombudsman's process.

Protection of Whistleblower's Identity

In addition to requiring everyone involved in the investigation to protect the identity of a whistleblower, protection for a whistleblower is further strengthened by prohibiting the disclosure of the whistleblower's identity in a civil court proceeding or a proceeding of an administrative tribunal.

Review of Act

The minister responsible for the Act is required to review it every five years.

Consequential amendments are made to The Personal Property Security Act and The Real Property Act.