Ontario
| Grade | FAIL |
|---|---|
| Total Score | 1 out of 25 |
| Freedom to blow the whistle | 0 out of 5 |
| Preventing reprisals | 0 out of 5 |
| Redress for reprisals | 1 out of 5 |
| Protecting the public interest | 0 out of 5 |
| Evidence of effectiveness | 0 out of 5 |
| Whether a prevailing defendant is presumptively entitled to costs and insulated from adverse costs | |
| Whether the act contains a damages provision | |
| Whether the act contains a statutory interpretation instruction | |
| Whether there is a procedure for scheduling expedited hearings of Anti-SLAPP motions | |
| Whether there is a right to an immediate appeal |
1. Executive Summary
Ontario’s PSOA whistleblower provisions were assessed using CFEWI’s Evaluation Criteria for Protection of Whistleblowers, examining both what’s on paper in the Act and how it is working in practice. These criteria were developed by CFEWI senior fellows David Hutton and Ian Bron in consultation with Government Accountability Project (GAP) and the Whistleblowing International Network. They are based on GAP’s best practice criteria and informed by EU whistleblowing Directive 2019/1937, other standards, and CFEWI experience.
The PSOA whistleblowing provisions fail all CFEWI criteria, mainly due to what we identify as critical shortcomings. These undermine the regime to a degree that renders it useless.
Under freedom to blow the whistle, the PSOA has five critical weaknesses, including disclosures made in the course of duties not being protected, the lack of protection for refusing to commit a wrongdoing, no mechanisms to escalate disclosures if they are not dealt with properly, a lack of protections for contractors and temp staff, and no mechanism for anonymous disclosures. Only Ontario public servants may blow the whistle; contractors and other workers are not protected.
For preventing reprisals, the PSOA has three critical weaknesses. That is, government departments and agencies have no duty to protect whistleblowers after they have spoken up, there is no interim relief available to stop reprisals before they do harm, and the Integrity Commissioner has no powers to investigate reprisal.
The PSOA rates marginally higher in redress for reprisals. One significant positive feature is the reverse burden of proof, requiring the organization to prove that detrimental action against whistleblowers is not related to their disclosure. However, the law still fails this category as it has protected no one. In particular, the 14-day limit to file a grievance renders it effectively useless.
There are three critical weaknesses under protecting the public interest. Most importantly, there is no credible process to correct wrongdoing. The Ontario Integrity Commissioner (OIC) almost always delegates investigations back to the implicated departments – letting them investigate themselves. The whistleblower has no right to rebut other evidence, and investigations cannot “follow the money” into the private sector.
Finally, there is no evidence of effectiveness. There are no outcomes or performance measures for the regime. While there was a review in 2013, only the most trivial recommendations were implemented – minor grammatical changes.
2. Key Features of the Act
Ontario’s PSOA deals with many aspects of public administration, with Part VI establishing “procedures for the disclosure and investigation of wrongdoing in the public service of Ontario and to protect public servants who disclose wrongdoing from reprisals.” It came into force in 2007 and only applies to the Ontario provincial government.
Who may make a disclosure (i.e., blow the whistle): Current or former public servants in the Ontario government ministries and public bodies as defined in the Act (s. 114).
Definition of wrongdoing: Actions of a public servant, minister, or parliamentary assistant that are
- A contravention of law,
- An act or omission that creates a grave danger to the life, health, or safety of persons or to the environment,
- Gross mismanagement,
- A direction to do one of the above (s. 108).
To be protected, a disclosure must be: Made in writing to a manager, an ethics executive, or the Integrity Commissioner (OIC).
Who is protected: The whistleblower, someone seeking advice about making a disclosure, witnesses, and anyone who otherwise cooperated or sought to enforce the Act (s. 139(1)).
Definition of reprisal: Any measure taken against a public servant that “adversely affects his or her employment or appointment.” This includes but is not limited to
- Termination,
- Discipline or suspension,
- Imposing a penalty,
- Threats or coercion (s. 139(2)).
3. Detailed Assessment and Scores
Freedom to blow the whistle: This assesses how free workers are to raise a concern about anything that may threaten the public interest, without barriers, hazards, or uncertainties
Preventing reprisals: This assesses whether the law prevents reprisals, ensures investigations into reprisal will be timely and competent, and has consequences for those responsible.
Redress for reprisals: This assesses whether whistleblowers can obtain complete remedies in a timely manner after a reprisal.
Protecting the public interest: This assesses whether disclosures of wrongdoing are subject to competent and timely investigation, that appropriate and timely corrective action is taken, and that appropriate information on findings and action is available to all parties and the public.
Evidence of effectiveness: This assesses whether evidence on the effectiveness of the whistleblowing regime is collected and made readily available, and whether it undergoes improvement based on that information.
