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Quebec Ombudsman now has power to investigate public sector whistleblower complaints

Topics: - Whistle Blowing
Jurisdiction: - Quebec

Since May 1, the Québec Ombudsman has had the power to investigate disclosures about wrongdoings committed or about to be committed relating to public bodies.

The source legislation is the Act to facilitate the disclosure of wrongdoings relating to public bodies, which was passed by the Québec government in December 2016.

The law firm of Miller Thompson provides the following context for the legislation: "Following the publication of the report of the Charbonneau Commission which dealt with corruption and collusion in the awarding of public sector contracts in the construction industry, the Liberal government introduced legislation to facilitate the disclosure of wrongful conduct within the public sector and establish measures to protect whistleblowers from reprisals..." (see: "Quebec Introduces Legislation to Encourage Whistleblowing in the Public Sector" (Janaury 16, 2016).

These are some of the FAQs of note from the Ombudsman website:

Q. What is a wrongdoing

A. According to the Act, the following are considered wrongdoings:

  • A contravention of a law or regulation applicable in Québec;
  • A serious breach of the standards of ethics and professional conduct;
  • A misuse of funds or property belonging to a public body, including the funds or property it manages or holds for others;
  • Gross mismanagement within a public body, including an abuse of authority;
  • An act or omission that seriously compromises a person's health or safety or the environment.

The fact of ordering or advising a person to commit one of these wrongdoings is also considered a wrongdoing

Q. What wrongdoings cannot be disclosed to the Québec Ombudsman?

A. A few examples:

  • A wrongdoing that is the subject of court proceedings or that relates to decision rendered by a court.
  • A wrongdoing that concerns a municipality.
  • A wrongdoing committed within a private company and that does not involve a public body.

A disclosure made solely for personal purposes is not admissible.

Q. Who can a disclosure be made about?

A. Anyone who has committed a wrongdoing within or relating to a public body may have a disclosure made about them, namely:

  • A member of the personnel of a public body, regardless of rank;
  • Any person, business, group or other entity who or that commits a wrongdoing relating to a public body subject to the Act (e.g. in carrying out a contract or awarding financial assistance).

You may know that wrongdoing has occurred without knowing exactly who did it. This should not prevent you from disclosing the information you have. 

Q. Can I disclose information without fear of being accused of being disloyal to my employer?

A. The Act to facilitate the disclosure of wrongdoings relating to public bodies provides for measures to protect whistleblowers and authorizes them to disclose information that they would not be allowed to disclose otherwise.

When you contact the Québec Ombudsman, you can tell us what you know without being afraid that you are being disloyal to your employer or that you have disclosed information despite your obligation of confidentiality or professional secrecy.

Note that when a disclosure is made to anyone other than a person provided for in the Act, the whistleblower is not protected against reprisal. A person may be penalized if he or she discloses confidential information to a third party other than the Québec Ombudsman or the officer responsible for dealing with disclosures.

Furthermore, the exemption from professional secrecy does not apply to attorney-client or notary-client privilege.

Photo Credit adil113