2 The Legal Response to Whistleblowing in Canada: Managing Disclosures…
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reprimand letters imposed by the employer, the federal Department of Health, as a disciplinary response to public statements made by the employees in which they expressed concern about the drug review process, particularly in relation to approval of growth hormones and antibiotics. The three employees had expressed their concerns as guests on a nationally televised morning news and information programme. Unlike Fraser, these employees did not seek media attention until after attempting without success to bring their concerns to the employer’s attention through internal means, including a request for the intervention of the Health Minister and of the Prime Minister, to support an external investigation. On an application for judicial review of the employer’s decision to impose discipline, a decision made by an assistant deputy minister, the Court undertook a Canadian Charter of Rights and Freedoms analysis. On this analysis, the Court concluded that, while the disciplinary action infringed the employees’ freedom of expression, the common law limitation was justified in a free and democratic society because, in part, it recognized the Fraser exceptions to an employee’s general duty of loyalty in circumstances of a serious risk to the life, health or safety of members of the public. On the evidence, the employees had made their public disclosure after first attempting to “go up the ladder” through the internal management structures and their concerns were directly related to matters of health and safety. The Court considered that the employees had made a reasonable effort to resolve their concerns internally and expressly noted that they had no personal interests at stake other than the public interest. The second Haydon decision is from 2005 and is known as Haydon v. Canada (Treasury Board).106 One of the employees involved in the 2001 case made another public disclosure to the media. The employee, a veterinarian, worked as a drug evaluator with Health Canada (the federal Department of Health) with expertise in relation to food-producing animals. In the context of a ban on the importation into Canada of beef from another country, due to concerns about exposure to B.S.E. (“mad cow disease”), the employee responded to a request for a comment from a journalist for national newspaper by stating, in effect, that the ban was not based on health concerns but was a political response due to another international trade issue between the governments of Canada and that other country. The employer responded to the employee’s public comments by imposing discipline in the form of a letter instructing her to conform to internal policies regarding media contact. An arbitrator dismissed the employee’s grievance of the employer’s disciplinary action and the Federal Court of Canada dismissed her application for judicial review of the arbitrator’s decision. Before the Federal Court of Canada, the employee again argued that the employer’s disciplinary action infringed her Canadian Charter of Rights and Freedoms, section 2(b) right to freedom of expression. The Court rejected the employee’s characterization of herself as a whistleblower. The employee had not addressed a serious health and safety concern but had commented on the government’s policy in relation to a trade matter specific to a foreign country. She had not taken steps to verify the accuracy of the information on which she based her opinion and had not first expressed her views internally so as to give the employer an opportunity to implement 106
Haydon v Canada, [2005] 1 F.C.R. 511, 2004 FC 749 (CanLII).
