Public Interest Disclosure Act

Overview

The Public Interest Disclosure Act (RSNB 2012, c. 112) protects public sector employees who have disclosed wrongdoings to supervisors, designated officers within an organization, or to the New Brunswick Ombudsman. The Act prohibits reprisals against employees who have made a disclosure, sought advice about making a disclosure, or cooperated in an investigation under the Act.

What kind of disclosure is protected?

The Act protects any public sector employee who, while acting in good faith and on the basis of reasonable belief, has disclosed information regarding a wrongdoing committed or about to be committed by a member of the public sector s.11

Under the Act, a wrongdoing s.3 is defined as: 

  • an act or omission which constitutes an offence under any provincial or federal Act;
  • an act or omission that creates substantial and specific danger to the life, health or safety of persons, or the environment, other than a danger that is inherent in the performance of the duties or functions of an employee;
  • gross mismanagement, including of public funds or a public asset; and
  • knowingly directing or counselling a person to commit a wrongdoing.

Disclosure to the public:

As an exception, a public sector employee may disclose a wrongdoing to the public in the following circumstances s.14

  • If the employee reasonably believes that the wrongdoing constitutes an imminent risk of a substantial and specific danger to the life, health or safety of persons, or to the environment, to the extent that there is insufficient time to make a disclosure under this Act. 
  • If the employee has first made the disclosure to an appropriate law enforcement agency or, in the case of a health-related matter, to the chief medical officer of health, and
  • Subject to any directions that the agency or officer considers necessary in the public interest

The employee is required to make a disclosure to his or her supervisor or designated officer immediately following the disclosure to the public s 14.

 

Disclosures by current or former public servants regarding deliberations of the executive council, solicitor-client privilege, deliberations or decisions of a Crown prosecutor or information subject to any restrictions under provincial or federal law is strictly prohibited under the Act s.16

Who is eligible for protection?

The Act protects current or former employees employed in the public service who have disclosed information regarding a wrongdoing. The disclosure may be made to the employee’s supervisor, a designated officer or the Ombud s.11. In order to benefit from protection, a disclosure must be in writing s.12.

An employee will not be protected under the Act if they have made a disclosure in bad faith, or if the disclosure is frivolous or vexatious. An employee will likely be subject to disciplinary action, which may include termination of employment s.5

Disclosures by current or former public servants regarding deliberations of the executive council, solicitor-client privilege, deliberations or decisions of a Crown prosecutor or information subject to any restrictions under provincial or federal law is strictly prohibited under the Act s.16.

How are whistleblowers protected?

The Act prohibits any person from knowingly taking any kind of reprisal against an employee for having made a protected disclosure, and may be found guilty and liable to a fine between $240 and 15,200 s.50(4.1); s.56(7) Provincial Offences Procedure Act. Additionally, any person who knowingly falsified, obstructs or destroys anything related to a disclosure or an investigation is liable to a fine between $240 and $5200 s.50(3)(a)-(d), s.50(4), s.56(5) Provincial Offences Procedure Act.

Any person who knowingly takes any kind of reprisal against an employee for having made a protected disclosure may be ordered to do any of the following: 

  • to cease an activity that constitutes the reprisal,
  • to rectify any harm caused by the reprisal,
  • to restore a complainant adversely affected by the reprisal to the position he or she would have been in if it weren’t for the reprisal,
  • to reinstate a complainant who has been removed from a position of employment,
  • to compensate a complainant adversely affected by the reprisal for any consequent expenditure, financial loss or deprivation of benefit in the amount that the adjudicator considers just and appropriate, and
  • to do or refrain from doing anything in order to remedy any consequence of the reprisal s 39.

Under the Act, the Ombud and all persons involved in the investigation of a complaint by a public sector employee must keep all information related to the complaint confidential s.26. In addition, while making the disclosure, the employee must take reasonable precautions to ensure that no more information is disclosed than necessary if the disclosure involves confidential information s.16.

If an employee fails to comply with the confidentiality requirements, they may be subject to disciplinary action s.26.

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.

In order to benefit from protection, a disclosure must be in writing, must be signed by the employee and must include the following information s.12:

  • a description of the wrongdoing;
  • the name of the person or persons alleged to
    • have committed the wrongdoing, or
    • be about to commit the wrongdoing;
  • the date of the wrongdoing; and
  • whether the wrongdoing has already been disclosed and a response received s. 12.

A current or former employee who alleges that a reprisal has been taken against him or her may file a written complaint with the Board s. 32. In order to file a complaint, please contact the New Brunswick Ombud Office or complete the online complaint form.  

All complaints to the Ombud are strictly confidential. 

 

For additional information on making a disclosure or a complaint, please visit: https://www.ombudnb.ca/site/role-of-the-ombud/statutory-responsibilities-under-the-public-interest-disclosure-act or contact the toll-free number at 1-888-465-1100 (Mon. to Fri.: 8:30a.m.-4:30 p.m.).