Public Servants Disclosure Protection Act (S.C. 2005, c. 46)

Marginal note:Who may settle — remedy

• 20.1 (1) A settlement that relates to the remedy to be provided to the complainant must be agreed to by the complainant and the person with the authority to implement the remedy.

• Marginal note:Who may settle — disciplinary action

  (2) A settlement that relates to the disciplinary action, if any, that is to be imposed on a person identified by the investigator as being the person or one of the persons who took the alleged reprisal must be agreed to by the person identified by the investigator and the person with the authority to take the disciplinary action.

Marginal note:Referral of a settlement to Commissioner

• 20.2 (1) The terms of a settlement must be referred to the Commissioner for approval or rejection and the Commissioner must, without delay after approving or rejecting them, so certify and notify the parties to the settlement.

• Marginal note:Complaint dismissed

  (2) If the Commissioner approves a settlement that relates to the remedy to be provided to the complainant, the complaint to which it relates is dismissed.

• Marginal note:Application barred

  (3) If the Commissioner approves a settlement that relates to disciplinary action, if any, that is to be imposed on a person, the Commissioner may not apply to the Tribunal for an order referred to in paragraph 20.4(1)(b) in respect of the person.

• Marginal note:Enforcement of settlement

  (4) A settlement approved by the Commissioner may, for the purpose of enforcement, be made an order of the Federal Court on application to that Court by the Commissioner or a party to the settlement.

Decision After Investigation

Marginal note:Investigator’s report to Commissioner

20.3 As soon as possible after the conclusion of the investigation, the investigator must submit a report of his or her findings to the Commissioner.

Marginal note:Application to Tribunal

• 20.4 (1) If, after receipt of the report, the Commissioner is of the opinion that an application to the Tribunal in relation to the complaint is warranted, the Commissioner may apply to the Tribunal for a determination of whether or not a reprisal was taken against the complainant and, if the Tribunal determines that a reprisal was taken, for

  • (a) an order respecting a remedy in favour of the complainant; or

  • (b) an order respecting a remedy in favour of the complainant and an order respecting disciplinary action against any person or persons identified by the Commissioner in the application as being the person or persons who took the reprisal.

• Marginal note:Exception

  (2) The order respecting disciplinary action referred in paragraph (1)(b) may not be applied for in relation to a complaint the filing of which is permitted by section 19.2.

• Marginal note:Factors

  (3) In considering whether making an application to the Tribunal is warranted, the Commissioner must take into account whether

  • (a) there are reasonable grounds for believing that a reprisal was taken against the complainant;

  • (b) the investigation into the complaint could not be completed because of lack of cooperation on the part of one or more chief executives or public servants;

  • (c) the complaint should be dismissed on any ground mentioned in paragraphs 19.3(1)(a) to (d); and

  • (d) having regard to all the circumstances relating to the complaint, it is in the public interest to make an application to the Tribunal.

Marginal note:Dismissal of complaint

20.5 If, after receipt of the report, the Commissioner is of the opinion that an application to the Tribunal is not warranted in the circumstances, he or she must dismiss the complaint.

Marginal note:Notice

20.6 The Commissioner must notify in writing each of the following of his or her action under section 20.4 or 20.5:

• (a) the complainant;

• (b) if the complainant is a public servant, the complainant’s employer;

• (c) if the complainant is a former public servant, the person or entity who was the complainant’s employer at the time the alleged reprisal was taken;

• (d) the person or persons identified in the investigator’s report as being the person or persons who may have taken the alleged reprisal;

• (e) the person or entity with the authority to take disciplinary action against any person referred to in paragraph (d); and

• (f) every person, other than the complainant, or entity that was sent a notice under subsection 19.4(2) in respect of the complaint.

Public Servants Disclosure Protection Tribunal

Establishment

Marginal note:Establishment

• 20.7 (1) There is established a tribunal to be known as the Public Servants Disclosure Protection Tribunal consisting of a Chairperson and not less than two and not more than six other members to be appointed by the Governor in Council. All of the members must be judges of the Federal Court or a superior court of a province.

• Marginal note:Tenure

  (2) Each member of the Tribunal is to be appointed for a term of not more than seven years and holds office so long as he or she remains a judge.

• Marginal note:Re-appointment

  (3) A member of the Tribunal, on the expiration of a first or any subsequent term of office, is eligible to be re-appointed for a further term.

• Marginal note:Temporary members

  (4) Subject to subsection (5), in addition to the members appointed under subsection (1), any judge or former judge of the Federal Court of Canada or the Federal Court or of a superior or district court of a province may, on the request of the Chairperson of the Tribunal made with the approval of the Governor in Council, act as a temporary member of the Tribunal.

• Marginal note:Consent required

  (5) Except in relation to a former judge, no request may be made under subsection (4)

  • (a) to a judge of the Federal Court without the consent of the Chief Justice of that Court or of the Attorney General of Canada; or

  • (b) to a judge of a superior court of a province without the consent of the chief justice or chief judge of that court or of the attorney general of the province.

• Marginal note:Approval of requests by Governor in Council

  (6) The Governor in Council may approve the making of requests under subsection (4) in general terms or for particular periods or purposes, and may limit the number of persons who may act as temporary members of the Tribunal.

• Marginal note:Remuneration of temporary members

  (7) Each temporary member of the Tribunal who is a former judge is to be paid the remuneration determined by the Governor in Council.

• Marginal note:Expenses

  (8) Each member of the Tribunal and each temporary member of the Tribunal is entitled to be paid the expenses fixed by the Governor in Council.

• Marginal note:Acting after expiration of appointment

  (9) A member of the Tribunal whose appointment expires may, with the approval of the Chairperson, conclude any hearing that the member has begun and he or she is deemed to be a temporary member of the Tribunal for the purpose.

Administration

20.8 [Repealed, 2014, c. 20, s. 468]

Marginal note:Sittings

20.9 The Tribunal may sit at the times and at the places throughout Canada that it considers necessary or desirable for the proper conduct of its business.

Proceedings

Marginal note:Conduct of proceedings

• 21 (1) Proceedings before the Tribunal are to be conducted as informally and expeditiously as the requirements of natural justice and the rules of procedure allow.

• Marginal note:Tribunal rules of procedure

  (2) The Chairperson of the Tribunal may make rules of procedure governing the practice and procedure before the Tribunal, including, but not limited to, rules governing

  • (a) the giving of notices to parties;

  • (b) the addition of parties and interested persons to the proceedings;

  • (c) the summoning of witnesses;

  • (d) the production and service of documents;

  • (e) discovery proceedings; and

  • (f) pre-hearing conferences.

• Marginal note:RCMP

  (3) The Chairperson must consult with the Royal Canadian Mounted Police before making any rules and must ensure that the rules take that organization’s security and confidentiality needs into account.

• Marginal note:Publication of proposed rules

  (4) A copy of each rule that the Chairperson proposes to make must be published in the Canada Gazette, and a reasonable opportunity must be given to interested persons to make representations with respect to it.

• Marginal note:Exception

  (5) A proposed rule need not be published more than once, whether or not it has been amended as a result of any representations.

Applications by Commissioner

Marginal note:Assignment of member or members

• 21.1 (1) On receipt of an application made by the Commissioner under subsection 20.4(1) the Chairperson of the Tribunal must assign a member of the Tribunal to deal with the application, but the Chairperson may assign a panel of three members if he or she considers that the complexity of the matter requires that it be dealt with by three members. Every decision of the member or panel is a decision of the Tribunal.

• Marginal note:Chair of panel

  (2) If a panel of three members has been assigned, the Chairperson must designate one of them to chair the proceedings, but the Chairperson must chair the proceedings if he or she is a member of the panel.

Marginal note:Powers

• 21.2 (1) The member or panel may

  • (a) in the same manner and to the same extent as a superior court of record, summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce any documents and things that the member or panel considers necessary for the full hearing and consideration of the application;

  • (b) administer oaths;

  • (c) subject to subsection (2), receive and accept any evidence and other information, whether on oath or by affidavit or otherwise, that the member or panel sees fit, whether or not that evidence or information is or would be admissible in a court of law;

  • (d) lengthen or shorten any time limit established by the rules of procedure; and

  • (e) decide any procedural or evidentiary question.

• Marginal note:Conciliators as witnesses

  (2) A conciliator appointed to settle the complaint is not a competent or compellable witness at a hearing.

• Marginal note:Witness fees

  (3) Any person summoned to attend a hearing is entitled, at the discretion of the member or panel, to receive the same fees and allowances as those paid to persons summoned to attend before the Federal Court.

Marginal note:Hearing may be in camera

21.3 A hearing before the Tribunal may be held in camera at the request of any party if the party establishes to the satisfaction of the Tribunal that the circumstances of the case so require.

Marginal note:Determination — paragraph 20.4(1)(a)

• 21.4 (1) On application made by the Commissioner for an order referred to in paragraph 20.4(1)(a) the Tribunal must determine whether the complainant has been subject to a reprisal and, if it so determines, the Tribunal may make an order granting a remedy to the complainant.

• Marginal note:Parties

  (2) The parties in respect of the application are the Commissioner and

  • (a) the complainant;

  • (b) if the complainant is a public servant, the complainant’s employer; and

  • (c) if the complainant is a former public servant, the person or entity who was the complainant’s employer at the time the alleged reprisal was taken.

• Marginal note:Addition of party

  (3) If the Tribunal is of the opinion that a person who has been identified as being a person who may have taken the alleged reprisal may be directly affected by a determination of the Tribunal, the Tribunal may add that person as a party.

Marginal note:Determination — paragraph 20.4(1)(b)

• 21.5 (1) On application made by the Commissioner for the orders referred to in paragraph 20.4(1)(b) the Tribunal must determine whether the complainant has been subject to a reprisal and whether the person or persons identified by the Commissioner in the application as having taken the alleged reprisal actually took it. If it determines that a reprisal was taken, the Tribunal may, regardless of whether or not it has determined that the reprisal was taken by the person or persons named in the application, make an order granting a remedy to the complainant.

• Marginal note:Parties

  (2) The parties in respect of proceedings held for the purpose of subsection (1) are the Commissioner and

  • (a) the complainant;

  • (b) if the complainant is a public servant, the complainant’s employer;

  • (c) if the complainant is a former public servant, the person or entity who was the complainant’s employer at the time the alleged reprisal was taken; and

  • (d) the person or persons identified in the application as being the person or persons who may have taken the alleged reprisal.

• Marginal note:Reasons

  (3) The Tribunal must issue written reasons for its decisions under subsection (1) as soon as possible.

• Marginal note:Order respecting disciplinary action

  (4) After issuing the reasons under subsection (3), the Tribunal may make an order respecting the disciplinary action to be taken against any person who was determined by it to have taken the reprisal.

• Marginal note:Parties

  (5) The parties in respect of proceedings held for the purpose of subsection (4) are the Commissioner, the person against whom the disciplinary action would be taken and, for the purpose of making submissions regarding disciplinary action on behalf of the person or entity who would be required to implement the order if it were made, any person designated by the Tribunal.