Whistle Blower Protection

Introduction

The term “whistle blower” brings to mind situations involving scandalous leaks of classified information, such as Edward Snowden’s disclosure of CIA information. However, whistle blowing can involve any situation where a person publicly discloses information about their organization which would otherwise be private. Situations involving the exposure of privileged workplace information often involve concerns about reprisal by the organization (such as perceived wrongful termination) or co-workers (such as bullying or harassment).

As of May 2019, British Columbia does not have specific legislation protecting whistle blowers despite the introduction of numerous bills in the past attempting to do so, including (most recently) Bill M216. As such, arbitrators, mediators and workplace investigators consider a range of legislation and legal precedents to properly assess situations involving perceived whistle blowing.

Potentially Relevant Legislation Considered by Arbitrators / Mediators / Workplace Investigators

The following pieces of legislation define:

• which activities (typically considered ‘whistle blowing’) are protected;
• actions that, when performed in response to those activities, are considered discriminatory;
• what the complaints process is for those who assert they engaged in whistle blowing activities and were subject to discriminatory action as a result.

A.  Workers Compensation Act, RSBC 1996, c 492

For British Columbians in non-federal work environments, the Workers Compensation Act (the “WCA”) provides ‘whistle blower protections’. This is accomplished via division 6 of the WCA which prohibits discriminatory action (s. 151), sets out what constitutes discriminatory action (s. 150), provides a complaints process (s. 152), and describes the possible outcomes of the complaints process (s. 153).

Under the second part of s. 150, the following acts (or omissions to act) are considered potential discriminatory actions of employers/unions/union representatives if taken in response to a worker having testified or provided occupational health and safety information;

(a) suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of workplace, reduction in wages or change in working hours,

(d) coercion or intimidation,

(e) imposition of any discipline, reprimand or other penalty, and

(f) the discontinuation or elimination of the job of the worker.”

The failure to pay wages – while not enumerated as a discriminatory action –  is similarly subject to the complaints process if done in response to a worker having provided occupational health and safety information or testimony.

The process of dealing with a complaint under these sections was summarized by the Appeal Tribunal in A1605498 (Re), 2017 CanLII 95707 (BC WCAT):

“In general, the following three criteria must be satisfied for the worker to establish a prima facie case of discriminatory action:

1. the employer engaged in “discriminatory action” within the meaning of section 150 of the Act;
2. the worker engaged in an activity as described in section 151 of the Act; and
3. there is a causal connection between the worker’s activity and the employer’s discriminatory action.” (Emphasis added).

B.  Canada Labour Code, RSC 1985, c L-2

For those whose employment involves a federal “work, undertaking or business”, the Canada Labour Code (the “CLC”) applies.  S. 147 of the CLC provides very similar protection as the WCA against reprisal in the form of discriminatory actions.

Under s. 147, discriminatory actions include; dismissal, suspension, lay-offs, demotions, and financial penalties. The section specifically includes protection from these actions where an employee was engaged in whistle blowing activities such as providing “testimony” or “information… regarding the conditions of work affecting.. health or safety…”.

C.  The Charter of Rights and Freedoms

(The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11) (the “Charter”)

While less commonly considered in the course of potential whistle blower scenarios, s. 2(b) of the Charter has been referred to as providing the basis for the “common law whistleblower defence”  (R. v. Skakun, 2013 BCCA 94 (CanLII)).

S. 2(b) states that the “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication” is a fundamental right which everyone has. Like all ‘Charter rights’, enforceability in the face of infringement is enabled by s. 24 which provides that “[a]nyone whose rights or freedoms… have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances”.

It would be atypical for a worker asserting whistleblower protection to claim infringement of Charter rights since the respective provincial and federal statues discussed above are not only more directly applicable, but also because courts have held that – in some circumstances – internal mechanisms dealing with whistle blowing protections must be exhausted before such a claim is made (R. v. Skakun, 2014 BCCA 223 (CanLII)).

Case in Point: An Example of the WCA framework being applied

In A1605498 (Re), 2017 CanLII 95707 (BC WCAT), an electrician appealed the decision of an investigations legal officer who had determined that the employer’s conduct towards (including not promoting, and later terminating) the electrician/worker was not related to the electrician/worker having expressed concerns about the safety of the work he was assigned. The Appeal Tribunal stated;

“The worker depicts himself as an occupational health and safety whistle blower against whom the employer discriminated in terms of refusing this promotion. However, by his own evidence the longstanding nature of the relationship between the employer and (the worker) suggests there was some other factor (or factors), unrelated to the worker’s protected activities, which motivated the employer’s decision.”

Ultimately, the Appeal Tribunal determined that “the employer’s decision to terminate the worker’s employment was (also) in no way motivated by the fact that he had engaged in protected activities described in section 151 of the Act” and “that for those complaints in which the worker established a prima facie case of discriminatory action within the meaning of section 151 of the Act, the employer has discharged its burden and proved there was no such contravention of the Act”.

Executive Summary

While BC does not have specific legislation protecting whistle blowers, there is a range of other legislation which might apply. For non-federal workers, ss. 150 – 153 of the WCA operate to prohibit discriminatory actions performed in response to whistleblowing activities (testimony or information provided regarding occupational health and safety) and provide a complaints process where it is alleged that such a discriminatory response has occurred. Similar protection is provided for those in federally-oriented workplaces.

Conclusion

Scenarios involving perceived whistle blowing, and the allegations of wrongful discipline or termination that sometimes accompany them, can be particularly complex – especially given the absence of specific legislation regarding whistle blowing in BC. As such, these situations are more effectively navigated utilizing the type of in-depth legal knowledge and experience offered by Neil Hain. Please contact us for a consultation regarding a whistle blowing issue at your workplace.