The Legal Response to Whistleblowing in Canada: Managing Disclosures by the “Up the Ladder” Principle

The origins and effects of public servant confidence in whistleblowing protection regimes

“…So on one hand, we find public servants with relatively high confidence in their whistleblowing regimes, yet nearly half (48 per cent) still feel it is at least somewhat legitimate to leak allegations of wrongdoing to the media. This contradicts claims made by Sossin () and McEvoy () that robust whistleblowing regimes will reduce the impulse among Canadian public servants to make unauthorized public disclosures (e.g., leaks to the media) to protect the public interest. The existence of a whistleblowing regime does not itself delegitimize unauthorized public disclosures to the media, but we find that public servants who have more knowledge of—or who have received training on—their whistleblowing regime are less likely to view leaking to the media as legitimate.…”

“…There are considerable debates in administrative legal scholarship concerning the most appropriate mechanisms to enable disclosure of perceived wrongdoing in the public sector. Prior to formal whistleblowing statutes in Canada, the courts have long accepted the ‘up‐the‐ladder’ approach as an appropriate balance of an employee's duties of loyalty, good faith and confidentiality to the employer and the public interest in disclosure of wrongdoing (McEvoy ). Sossin () has argued that common law whistleblowing protections may be preferable to formal statutory regimes in part because a statute may in fact make it more difficult to expose government wrongdoing, particularly if it is perceived to initiate a cumbersome process.…”

“…Relatedly, Thomas () has argued that in a comparative context, whistleblowing regimes are generally ‘failing’, citing a low number of disclosures in most jurisdictions that have them, and the absence of any systematic evidence that they serve to correct bad behaviour in government. There are also questions about whether they are truly designed to facilitate whistleblowing or, alternatively, to ‘manage’ (i.e., contain) whistleblowing (McEvoy , p. 69).…”

“…Finally, McEvoy () argues that to be truly effective, employees must have confidence in the procedures established by the legislation or they will seek other avenues, such as anonymous external disclosure (e.g., leaking to the media). Like Sossin (), McEvoy asserts, but does not demonstrate empirically, that a person's confidence in their whistleblowing regime renders illegitimate unauthorized external disclosures.…”

Vile wretches and public heroes: A survey of Canadian whistleblowing literature

“…In general, there were concerns that existing political and administrative values and norms may be at odds with the operationalizing of whistleblower protections, and perhaps the very concept of whistleblowing. McEvoy () offered a different perspective, arguing that legal interpretations of whistleblower protections have been consistent with the duties of loyalty, good faith, and confidentiality which employees traditionally owe to their employers. Firm conclusions about the effectiveness of Canada’s whistleblowing regimes are hampered, however, by the lack of quantitative data.…”