BILL NO. 10
(as introduced)
3rd Session, 58th General Assembly
Nova Scotia
52 Elizabeth II, 2003
Whistleblowers Act
Frank Corbett
Cape Breton Centre
First Reading: March 31, 2003
Second Reading:
Third Reading:
An Act to Protect Civil Servants
Who Disclose Government Wrong-doing
Be it enacted by the Governor and Assembly as follows:
1 This Act may be cited as the Whistleblowers Act.
2 The purpose of this Act is to
(a) provide for the disclosure of Government information by employees who reasonably believe that this information evidences Government wrong-doing;
(b) expand the role of the Ombudsman to serve as a vehicle for Government employees to disclose Government wrong-doing; and
(c) protect from employment reprisals employees who internally disclose information that the employee reasonably believes evidences Government wrong-doing.
3 In this Act,
(a) "civil service" means all positions in the public service of the Province to which persons are appointed as employees;
(b) "confidential individual information" means information that is described in subclauses 3(i)(i) to (ix) of the Freedom of Information and Protection of Privacy Act that can be identified with an individual;
(c) "employee" means a person appointed to a position in the public service of the Province whose employment may or may not be of a continuous nature;
(d) "head" means the deputy of the member of the Executive Council presiding over a department or agency and all others whom the Governor in Council designates, from time to time, as having the status of deputy head;
(e) "information" means information, however recorded, whether in printed form, on film, by electronic means or otherwise;
(f) "minister" means a member of the Executive Council and, in the case of a board, commission, foundation, agency, association or other body of persons not reporting directly to a minister in respect to its day-to-day operations, means the chief executive officer;
(g) "Ombudsman" means the Ombudsman appointed pursuant to the Ombudsman Act.
4 No employment reprisal shall be taken against an employee because the employee discloses information concerning a policy or practice of the Government or a governmental agency or any matter of public concern that the employee reasonably believes is
(a) a violation of a law, rule or regulation;
(b) mismanagement, gross waste of funds, abuse of authority, a danger to health or safety or doing grave damage to the natural environment; or
(c) a wrong-doing that ought in the public interest to be disclosed.
5 No employment reprisal shall be taken against an employee who
(a) discloses information referred to in Section 4 in public, to the Ombudsman or to any person other than the Ombudsman; or
(b) instructs the Ombudsman to disclose information to the public pursuant to Section 10,
unless it is proven that the governmental interest in confidentiality outweighs the public interest in obtaining disclosure.
6 (1) Where an employee discloses information to the Ombudsman pursuant to Section 5, the Ombudsman shall, if the public interest in disclosure is more than minimal, require the head of the appropriate agency to
(a) conduct an investigation of the information disclosed by the employee and any related matters; and
(b) within thirty days submit a written report to the Ombudsman setting forth the findings of the investigation which the Ombudsman shall disclose to the employee.
(2) Subject to Section 5, a report required pursuant to subsection (1) shall include
(a) a summary of the information that initiated the investigation;
(b) a description of the conduct of the investigation;
(c) a summary of the evidence obtained from the investigation;
(d) a listing of any violation or apparent violation of any law, rule or regulation, mismanagement, gross waste of funds, abuse of authority, danger to public health or safety, grave damage to the natural environment or other wrong-doing that was discovered in the course of the investigation; and
(e) a description of the corrective action taken or planned to be taken as a result of the investigation.
7 The Ombudsman shall maintain and make available to the public files containing any information disclosed to the Ombudsman pursuant to Section 5 and any report by the head of an agency pursuant to Section 6, except where
(a) in the opinion of the Ombudsman, the public interest in obtaining access to the file is minimal; or
(b) the employee instructs the Ombudsman not to make the file available to the public.
8 (1) Where an employee discloses information to the Ombudsman that the Ombudsman believes is of immediate and significant interest to the public, the Ombudsman shall, after receiving the agency report or after the lapse of the period during which an agency may file a report pursuant to Section 6 or, after such further period as may be agreed to by the employee, disclose the information to the press and other media of communication unless otherwise instructed by the employee.
(2) Where an agency report pursuant to Section 6 discloses information to the Ombudsman that the Ombudsman believes is of immediate and significant interest to the public, the Ombudsman shall, subject to Section 7, forthwith disclose such information to the press and other media of communication unless otherwise instructed by the employee.
9 (1) Where the Ombudsman requires the head of an agency to report pursuant to Section 6 and the head of the agency determines that
(a) the information disclosed to the Ombudsman by the employee is information referred to in Section 27 of the Freedom of Information and Protection of Privacy Act and includes confidential individual information; and
(b) such information should not be disclosed to the public,
the head of the agency shall forthwith inform the Ombudsman, in writing, of that determination.
(2) Where the head of an agency required to report to the Ombudsman pursuant to Section 7 determines that the information required to be included in the agency report is information referred to in Section 27 of the Freedom of Information and Protection of Privacy Act and includes confidential individual information that should not be disclosed to the public, the head of the agency may
(a) report the determination to the Ombudsman and refuse to include the information in the agency report but shall otherwise report fully pursuant to Section 7; or
(b) report the determination to the Ombudsman who shall not disclose the determination pursuant to Sections 7 and 8 or in any other manner, except that the Ombudsman shall disclose it to the employee.
10 Where the head of the agency reports to the Ombudsman pursuant to subsection 9(1), the Ombudsman shall, if so instructed by the employee,
(a) disclose the information received from the employee to the public in accordance with Sections 7 and 8; or
(b) make an application to the Supreme Court of Nova Scotia for an order that the information be disclosed to the public in accordance with Sections 7 and 8,
and an employment reprisal shall not be taken against the employee because of disclosure pursuant to such an order.
11 Where the head of an agency refuses to disclose information to the Ombudsman pursuant to clause 9(2)(a), the Ombudsman shall, if so instructed by the employee, forthwith make an application to the Supreme Court of Nova Scotia for an order that the information be disclosed to the public in accordance with Sections 7 and 8.
12 Where the head of an agency discloses information to the Ombudsman in confidence pursuant to clause 9(2)(b), the Ombudsman shall, if so instructed by the employee, forthwith make an application to the Supreme Court of Nova Scotia for an order that the information be disclosed to the public in accordance with Sections 7 and 8.
13 The office of the Ombudsman shall arrange legal counsel for an employee who
(a) seeks advice relating to the rights and obligations of employees who disclose information referred to in this Act to the Ombudsman or to any other person;
(b) discloses information referred to in this Act in public to the Ombudsman or to any person other than the Ombudsman; or
(c) instructs the Ombudsman to bring an application pursuant to clause 10(b) or Section 11 or 12,
and all communications between such employees and the Ombudsman are subject to solicitor-client privilege, the Ombudsman shall not disclose the identity of the employee to any person except with the employees consent and no action for discovery lies against the Ombudsman.
14 (1) Where an employee alleges that the minister or the head of a department or an agency has taken an employment reprisal as a result of the employee disclosing information pursuant to Sections 4 and 5, the employee may grieve the matter in accordance with the grievance procedures provided in the collective agreement or, failing final determination under such procedure, the matter may be processed in accordance with the procedure for final settlement applicable pursuant to Section 33 of the Civil Service Collective Bargaining Act.
(2) Where, at an inquiry pursuant to subsection (1), it is determined that an employment reprisal against the employee is excessive, the arbitrator may substitute such other penalty as is just and reasonable under the circumstances.
15 In any proceeding pursuant to Section 14, the minister or the head of a department or an agency bears the burden of proving that it was entitled to take an employment reprisal against the employee pursuant to this Act.
16 (1) Either party to a dispute pursuant to Section 14 may appeal to the Supreme Court of Nova Scotia from a determination concerning the right to take an employment reprisal but no appeal shall lie from a determination pursuant to subsection 14(2) concerning the reasonableness of a penalty imposed by the head of a department or an agency or substituted by an arbitrator.
(2) Either party may apply to the Nova Scotia Court of Appeal for leave to appeal from a decision of the Supreme Court of Nova Scotia pursuant to subsection (1) and the Court of Appeal shall grant leave in any case that raises questions of public importance.
17 (1) Where the Ombudsman makes an application pursuant to clause 10(b) or Section 11 or 12, or where an appeal is taken from a determination in respect of such an application, the court shall examine or hear the information and may order disclosure of all or part of the information and may impose any restrictions or conditions that it deems appropriate in the public interest.
(2) On an application referred to in subsection (1) or an appeal in respect of such application, the minister or the head of a department or an agency resisting disclosure of the information may, at the courts discretion, be given an opportunity to make representations ex parte.
This page and its contents published by the Office of the Legislative Counsel, Nova Scotia House of Assembly, and © 2003 Crown in right of Nova Scotia. Updated April 1, 2003. Send comments to legc.office@novascotia.ca.
