Investigation Process
Whether you have made a disclosure or a reprisal complaint that is being investigated, are under investigation, or participating as a witness, you may have a number of questions about the process.
The investigations conducted under the Public Servants Disclosure Protection Act (PSDPA) are administrative in nature. Decisions whether a wrongdoing has been committed are made on the balance of probabilities test (which means that it is more likely to be true than not true). A decision whether to refer a reprisal complaint to the Tribunal is made, according to the PSDPA, on the basis of whether there are “reasonable grounds for believing a reprisal was taken”.
The rights to procedural fairness and natural justice of all persons involved in investigations are respected throughout the investigation process. This means that any person adversely affected by the allegations will be informed of the details of the allegations in due course and will have a full and ample opportunity to respond to them, either orally or in writing, or both, throughout the process.
As required by the Privacy Act and the Access to Information Act, the Commissioner must refuse to disclose any personal information that was obtained or created by her or obtained or created by the Office’s investigators in the course of an investigation. As required by the PSDPA, the Commissioner and the Office’s investigators shall not disclose any information that comes to their knowledge in the performance of their duties, unless otherwise required by law.
The Commissioner will launch an investigation when there are sufficient grounds to believe that wrongdoing or reprisal has occurred, after a thorough analysis of all the relevant information related to the protected disclosure or reprisal complaint.
Regardless of whether or not the Commissioner decides to pursue an investigation into the allegations, the discloser or reprisal complainant is notified in writing of the reasons for this decision.
How do you determine whether an investigation is required?
The Commissioner will launch an investigation when the allegations concern wrongdoing as defined by the PSDPA and when there are sufficient grounds to believe that wrongdoing has occurred. In some instances, it is possible that the Commissioner decides not to investigate. Some of the factors considered when making this decision include:
- whether the information disclosed has been properly and adequately dealt with, or could more appropriately be dealt with, according to another procedure (for example, human rights violations can be dealt with by the Canadian Human Rights Commission);
- the length of time that has elapsed since the events occurred (after a certain amount of time, it may serve no useful purpose to deal with the disclosure).
- whether the matter falls within the jurisdiction of the Commissioner.
What will happen after I make a disclosure?
Your disclosure will be reviewed to determine if an investigation is warranted. The Commissioner will notify you in writing of her decision to proceed or not with an investigation, as well as the reasons for her conclusion.
If the Commissioner’s decision is to investigate, we will advise the chief executive of the organization involved. If required, we will also advise persons against whom allegations have been made.
At the end of an investigation, you will be notified of the Commissioner’s findings and you may be asked to participate as a witness during the course of the investigation.
How long does the process take?
As each case is unique, it is difficult to set out a specific timeframe for how long the disclosure process takes. For example, factors that affect the length of time the process can take include:
- availability of documentation and key witnesses;
- complexity of issues;
- whether specific expertise or research is needed.
Since April 1, 2013, we have implemented service standards to provide greater transparency and certainty to our stakeholders, as well as to have an objective means of measuring our own performance.
The PSDPA provides a 15-day time limit for us to determine whether to act on a complaint of reprisal. In addition, we will apply the following service standards, barring exceptional circumstances:
- General inquiries will be responded to within one working day;
- A decision to investigate a disclosure of wrongdoing will be made within 90 days of the discloser’s first contact with our Office; and
- Investigations into disclosure and reprisal complaints will be completed within one year of being launched.
These standards will apply to new files as of April 1, 2013.
Note: The Office is receiving an unprecedented number of disclosures of wrongdoing, reprisal complaints and general inquiries. As a result of increased submissions, delays in the analysis and investigation of files are expected.
When the Commissioner launches an investigation, what information is shared and with whom?
In accordance with the PSDPA, your identity will be protected to the extent possible. When conducting an investigation, the Commissioner must notify the chief executive concerned of the substance of the disclosure to which the investigation relates, not the discloser's identity.
The Commissioner, or the person conducting the investigation, may also notify any other person he considers appropriate, including every person whose acts or conduct are called into question by the disclosure to which the investigation relates, and inform that person of the substance of the disclosure.
What happens following an investigation into a disclosure of wrongdoing?
The Commissioner will make a decision as to whether the alleged wrongdoing is founded based on the results of the investigation.
The Commissioner’s decision will be communicated to the discloser, other persons involved, and to the organization’s chief executive. If wrongdoing is found to have occurred, the Commissioner can make recommendations to chief executives concerning corrective measures and will report the finding to Parliament within 60 days of informing the chief executive.
Allegations of wrongdoing have been made against me. What are my rights?
The Office is committed to ensuring that the principles of natural justice and procedural fairness are applied to all persons involved.
If you are alleged to have committed a wrongdoing, you will be informed of the substance of the disclosure. You will be given full and ample opportunity to answer any allegation. You have the right to be assisted or represented by any person of your choice, including counsel.
Do I have any recourse if I am not satisfied with a decision by the Commissioner?
There is no appeals process for the Commissioner’s decisions. However, an application for judicial review of the Commissioner’s findings may be brought to the Federal Court of Canada.