3rd Session, 43rd Legislature

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Bill 14

THE PUBLIC INTEREST DISCLOSURE (WHISTLEBLOWER PROTECTION) AMENDMENT ACT

(Assented to                                         )

HIS 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 adding the following definitions:

"alternate recipient" means the person who must be given a copy of a report under subsection 24(3). (« destinataire substitutif »)

"Clerk of the Executive Council" means the head of the core public service appointed under section 32 of The Public Service Act. (« greffier du Conseil exécutif »)

(b) in the definition "reprisal", by replacing the part before clause (a) with the following:

"reprisal" means any of the following measures taken against an employee:

3(1)   Section 6 is renumbered as subsection 6(1) and is amended by striking out "Every chief executive" and substituting "Subject to subsections (2) and (3), every chief executive".

3(2)   The following is added as subsections 6(2) and (3):

Designated officer — wrongdoing by designated officer, etc.

6(2)   If the chief executive is not the designated officer, the chief executive must act in that capacity when a disclosure alleges wrongdoing by any of the following:

(a) the designated officer;

(b) a person with the same level of authority as the designated officer;

(c) a person with authority over the designated officer, other than the chief executive.

Designated officer — wrongdoing by deputy minister

6(3)   The Clerk of the Executive Council must act as the designated officer when a disclosure alleges wrongdoing by a deputy minister.

4   The following is added after section 15:

Disclosure despite agreement

15.1   Subject to section 16, an employee may make a disclosure under this Act even if a provision in an agreement in respect of the employee, including a non-disclosure agreement, prohibits or restricts disclosure of the information, and any such provision is invalid and unenforceable to the extent that it prohibits or restricts the employee from making such a disclosure.

5   The following is added after subsection 19.1(1):

Investigation referred to Ombudsman

19.1(1.1)   Despite subsection (1), a disclosure that alleges wrongdoing by a chief executive (other than a deputy minister) must, with notice to the employee, be referred to the Ombudsman for investigation.

6(1)   Subsection 22(6) is renumbered as subsection 22.1(1) and is amended

(a) by replacing the section heading with "Ombudsman's powers and protections re investigations"; and

(b) by striking out "Sections 12" and substituting "Subject to subsection (2), sections 12".

6(2)   The following is added as subsection 22.1(2):

Ombudsman investigation of chief executive — notice and referral to alternate recipient

22.1(2)   When a disclosure about a chief executive is referred to the Ombudsman, the Ombudsman must not

(a) under section 25 of The Ombudsman Act, inform the chief executive of the Ombudsman's intention to make an investigation; and

(b) under subsection 29(2) of The Ombudsman Act, refer evidence of wrongdoing to the chief executive.

Instead, the Ombudsman must provide notice of their intention to investigate and refer evidence of wrongdoing to the applicable alternate recipient.

7(1)   Subsection 24(3) is amended by replacing everything before clause (b) with the following:

Copy to alternate recipient

24(3)   Despite subsection (2), the Ombudsman must not give a copy of the report of an investigation involving the chief executive to that chief executive. Instead, the Ombudsman must give a copy of the report to the following alternate recipients:

(a) in the case of a department, to the minister responsible and the Clerk of the Executive Council;

7(2)   Subsection 24(3) of the English version is further amended by striking out "or" at the end of clause (e).

7(3)   The following is added after subsection 24(3):

Copy to minister

24(3.1)   Despite subsection (2), the Clerk of the Executive Council must not give a copy of the report of an investigation involving a deputy minister to that deputy minister. Instead, the Clerk must give a copy of the report to the minister responsible for the department.

7(4)   The following is added after subsection 24(4):

Providing person alleged of wrongdoing with summary

24(5)   The designated officer or Ombudsman must, if practicable, provide any person alleged or found to be responsible for a wrongdoing with a summary of the results of the investigation. The designated officer or Ombudsman may do so in the manner and at the time the designated officer or Ombudsman considers appropriate.

8(1)   Subsection 25(1) is replaced with the following:

Ombudsman to receive notice of proposed steps

25(1)   The Ombudsman may ask

(a) the chief executive; or

(b) in the case of an investigation involving a chief executive, the alternate recipient;

to inform the Ombudsman, within a specified time, of the steps taken or proposed to be taken to give effect to any recommendation made by the Ombudsman.

8(2)   Subsection 25(2) is amended by striking out everything after "report on the matter" and substituting "to the applicable alternate recipient.".

9   Section 27 is replaced with the following:

Protection of employee from reprisal

27   No person shall take a reprisal against an employee or direct that one be taken against an employee because the employee has or is suspected of having, in good faith, done any of the following:

(a) sought advice about making a disclosure from the employee's supervisor, designated officer or chief executive, or the Ombudsman;

(b) made a disclosure;

(c) co-operated in an investigation under this Act;

(d) declined to participate in a wrongdoing;

(e) otherwise acted in accordance with this Act.

10   The following is added after subsection 27.1(1):

Ombudsman to facilitate resolution within public body

27.1(1.1)   When an employee or former employee makes a complaint to the Ombudsman, the Ombudsman may take any steps the Ombudsman considers appropriate to help resolve the matter within the public body.

11   The following is added after section 29 as part of Part 4:

Burden of proof

29.0.1   In an investigation under section 27.1 or a proceeding under section 28, the burden of proving that a reprisal has not been taken against a complainant contrary to section 27 is on the person who is subject to the reprisal complaint.

12   Clause 29.1(2)(a) is amended by adding "and, if no disclosures were received, a statement that none were received" at the end.

Coming into force

13   This Act comes into force on a day to be fixed by proclamation.