Why it's hard to blow the whistle under New Brunswick's whistleblower law

When Scott Campbell decided to blow the whistle, he used every mechanism at his disposal except New Brunswick's whistleblower legislation.

The former Opportunities New Brunswick employee, fired in 2020, ended up filing complaints under five different provincial laws as well as a civil lawsuit in the Court of King's Bench.

The one legal tool he did not use was the one designed for his situation: the Public Interest Disclosure Act, also known as the whistleblower act.

"We do not have a safe and responsible system for disclosure in this province," Campbell said in a Jan. 24 interview. "The legislation for the most part is broken.

"The whole situation is extremely skewed in the government's favour."

Law is 'window dressing,' says researcher

Whistleblower legislation is intended to increase transparency and accountability.

New Brunswick's law is supposed to allow civil servants to go to a supervisor or a designated person in their department or institution to disclose wrongdoing by a colleague or superior, without fear of reprisals.

But the law, first passed in 2007 and updated in 2013, has been criticized as weak, difficult to use and poorly understood by many senior civil servants responsible for complying with its provisions.

"It's kind of a nothing law," said Ian Bron, a former federal whistleblower and a researcher and instructor on whistleblower legislation at Carleton University who recently wrote a report on the New Brunswick law.

"It's window dressing, is what it is. And people are happy with it being window dressing, in my assessment."

According to New Brunswick ombud Marie-France Pelletier, there have been only 27 inquiries about the act in the 11 years since it was put under her office's responsibility.

No investigations have happened in that time, "mainly due to inquirers deciding not to proceed with a disclosure" or because some of the complaints were outside the purview of the law and the office's role.

"Given that there's been so little take-up around making public interest disclosures from public servants, obviously you have to wonder what is driving that," Pelletier said in an interview.

Campbell fired for complaint, board finds

In 2019, Campbell accused two ONB executives of unethical actions, including falsifying information in a memorandum to the provincial cabinet for a decision on taxpayer subsidies to a company setting up in Moncton.

Those allegations are unproven, and ONB says an internal review determined there was "no impropriety" and "falsified information did not reach cabinet and decisions were not made premised on false information."

The merits of his allegations aside, the New Brunswick Employment and Labour Board ruled in December that ONB fired Campbell because of his complaint.

That ruling wasn't based on the Public Interest Disclosure Act, however, because Campbell never used it.

Instead, the board based its decision on the Employment Standards Act, which prohibits the firing of an employee who gives evidence of an alleged violation of provincial or federal law.

Campbell said he didn't use the whistleblower act because officials at the Department of Finance and Treasury Board whom he first contacted about his concerns pointed him to other laws and procedures.

Besides the Employment Standards Act, he also used a Public Service Labour Relations Act grievance, the Occupational Health and Safety Act, the Human Rights Act and the Ombud Act to fight his firing.

It doesn't take much information to be able to piece it together, to identify who someone may be. Marie-France Pelletier

The whistleblower act allows civil servants to complain to their supervisors, to a designated officer within their organization, or to the ombud.

But Campbell said the first two options made no sense given ONB's small size and the fact his complaint was about senior officials.

"I would have had to walk into the deputy minister's office, or my vice-president's office, and say to them, 'Look, I think you guys are committing wrongdoing here.' It's just not practical."

Instead he filed a workplace complaint that he was harassed and fired over the concerns he raised, hoping that process under the Occupational Health and Safety Act would better protect him.

Even the whistleblower law's third option, going directly to the ombud, still requires a notification to the head of the department or institution about the substance of the allegation.

Pelletier acknowledges there's a risk a whistleblower will be easily identified.

"In a province that's as small as New Brunswick, in a public service that is even smaller, it doesn't take much information to be able to piece it together, to identify who someone may be," she said.

"If I were a public servant, I would probably be concerned with that, for sure."

Law's protections 'limited,' says report

Two experts who have reviewed New Brunswick's act have come to the same conclusion.

"Confidentiality is only protective if wrongdoers cannot otherwise surmise the identity of the whistleblower, and this must be accompanied by explicit sanctions for attempting to identify them," Bron wrote in his report.

Carroll Boydell, a researcher at Kwantlen Polytechnic University in British Columbia who reviewed the act for Campbell, agreed in her report that its protections are "limited."

In 2017, then-ombud Charles Murray called for a "blind contact" provision to be added to the law, allowing employees to make disclosures through an intermediary.

He made the comments after then-premier Brian Gallant said he learned key facts in a property assessment fiasco at Service New Brunswick from a media leak, not as a result of a disclosure under the law.

"A whistleblower in this province has to be fairly courageous and has to take things on faith," Murray said at the time.

'David and Goliath situation'

Bron says other improvements are needed, including putting the onus on the province to prove that a firing wasn't a reprisal for a disclosure made by a whistleblower.

Currently, the act allows a fired employee to use the Labour Boardprocess, but that's after the fact.

"That takes years, and in the meantime you're suffering from reprisals" such as lack of a salary, Bron said another deterrent for anyone thinking of using the act.

It also means their firing is treated like a routine human resources issue.

"But it's not," he said. "When an organization is implicated in wrongdoing, they're going to mobilize their resources and it's a David and Goliath situation."

Green Party Leader David Coon said he has a constituent who was fired from a provincial public sector job after she attempted to blow the whistle on concerns she had.

Educate people on law, says Coon

In that case, the ombud's office wrote to acknowledge her "difficulties" using the Public Interest Disclosure Act.

"PIDA is a statute that is not well understood by the authorities under its purview," the office wrote.

Coon is calling for better education for employees who may need to use the act but find the process confusing, and senior managers who may not understand their obligations when the act is used.

"There needs to be a clearer way for government to make the employees aware of how to navigate that system," he said.

They are afraid of being harassed, and they are afraid of being retaliated against. Scott Campbell

Pelletier said an education campaign is part of her plan, along with consultations with her counterparts in other provinces on how the act itself can be improved.

"This is something that we all grapple with, in terms of what might be the right mechanisms to make sure that we can reassure people that they are protected."

In the meantime, she said, her office can give confidential advice to anyone thinking of using the law.

Coon said with an election this year, it's the ideal time to press the government and other parties to commit to improving the law.

"Everyone in the province wants to think or believe that someone who is working in the public service, providing public services, and discovers something that is contrary to the public interest, and could be damaging or harmful, has the ability to blow the whistle on that. And that's not the case."

Campbell said that without changes, thousands of provincial employees will be living "with their heads down, afraid to come forward when they witness wrongdoing. They are afraid of being harassed, and they are afraid of being retaliated against.

"They are right to be afraid."