Canada Labour Code

Overview

The Canada Labour Code (RSC 1985, c. L-2) protects employees who have reported a violation of health and safety working conditions under the Code or have contributed to any health and safety inquiry to a health and safety inspector. Any reprisals made against employees are prohibited, including reports on violations regarding wages, hours of work, annual vacation or conditions of work of an employee (including sexual harassment). The Code also protects employees who have contributed to any inquiry made by the Minister of Labour or an inspector.  In 2007 the Ontario Superior Court found that employees disclosing any wrongdoings under the Code in the prescribed way and to the prescribed officials, were also protected under the unjust dismissal provisions, including financial penalties. In 2016, the Supreme Court of Canada decided that those provisions applied to both unionized and nonunionized employees.

What kind of disclosure is protected?

The Act protects any employee who, on the basis of reasonable belief, has disclosed information regarding a violation of health and safety working conditions under the Act s.147.

Identity will be kept confidential by the Minister or his officials except where disclosure is necessary for the purposes of a prosecution or is considered by the Minister to be in the public interest s. 260. Parties that engage the Industrial Relations Board’s services should be aware that this is a public process, and that all documents and information (such as parties and witnesses identities) will be placed on the public record.

Who is eligible for protection?

The Act protects any employee who, on the basis of reasonable belief, has disclosed information regarding a violation of health and safety working conditions under the Act s.147.

Under the Act, employees. 3 means any person employed by an employer, and includes a dependent contractor and a private constable, but does not include a person who performs management functions or is employed in a confidential capacity in matters relating to industrial relations.

Employer s. 3 also means any person who employs one or more employees, and in respect of a dependent contractor, such person as, in the opinion of the Board, has a relationship with the dependent contractor to such extent that the arrangement that governs the performance of services by the dependent contractor for that person can be the subject of collective bargaining.

The Act applies to both unionized and non-unionized employeesWilson v. Atomic Energy of Canada Ltd., 2016 SCC 29.

In order to be protected, an employee must make a disclosure to the Canadian Industrial Relations Board. The disclosure must be filed within 90 days after the employee first knew, or ought to have known, of the action or circumstances giving rise to their complaint s. 133.

Proceedings must be instituted within 2 years from the day on which the subject-matter of the proceedings arose s. 149(4).

How are whistleblowers protected?

Under the Act, an employee who provides information regarding a wrongdoing may request that their identity must be kept confidential s.260. 

The Act prohibits any kind of reprisal against an employee who has made a protected disclosure under the Act, who has testified regarding a disclosure, or who has acted in accordance with the Act s.147(a)-(c). 

A reprisal includes any of the following acts: dismissal; suspension; lay off; demotion; penalties of any kind; refusal to pay remuneration; any disciplinary action; or threats s.147.

Any person who knowingly takes any kind of reprisal against an employee who has disclosed information regarding a wrongdoing under this Act is:

  • on an indictment conviction, guilty of an offence and is liable of a fine no more than $1,000,000 or to a term of imprisonment of no more than 2 years, or to both; or
  • on summary conviction, to a fine of not more than $100,000 s.148(1) (a)-(b).

How should disclosures be made?

Be careful! Despite presenting some challenges for follow ups, one of the best protections for whistleblowers is their anonymity. Be cautious when providing any information through electronic means, especially emails! Read the security tips section.

A disclosure should be made using the Reprisal Complaint Form, found under the  ‘Canada Labour Code (Part II – Occupational Health and Safety)’ tab in this link.The form can be submitted electronically through the Board’s web portal, delivered in person, or sent by courier, mail or fax.  If an employee chooses to fax or mail their form, it should be sent to one of the Board’s regional offices. 

The complaint is deemed to be filed on the date of receipt by the Board, unless it is sent by registered mail in which case the filing date is the date it was registered and mailed.

If there are questions about this form, please contact a Canada Industrial Relations Board officer at 1-800-575-9696.