SUPREME
COURT OF CANADA
Citation: Merk v. International
Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers,
Local 771, [2005] 3 S.C.R. 425, 2005 SCC 70
|
Date: 20051124
Docket: 30090
|
Between:
Her
Majesty The Queen ex rel. Linda Merk
Appellant
and
International
Association of Bridge, Structural,
Ornamental
and Reinforcing Iron Workers, Local 771
Respondent
Coram:
McLachlin C.J. and Major, Binnie, LeBel, Deschamps, Abella and Charron JJ.
Reasons for
Judgment:
(paras. 1 to 48)
Dissenting
reasons:
(paras. 49 to 61)
|
Binnie J. (McLachlin C.J. and Major, LeBel, Abella and
Charron JJ. concurring)
Deschamps J.
|
______________________________
Merk v.
International Association of Bridge, Structural, Ornamental and Reinforcing
Iron Workers, Local 771, [2005] 3 S.C.R. 425, 2005 SCC 70
Her Majesty
The Queen ex rel. Linda Merk Appellant
v.
International
Association of Bridge, Structural,
Ornamental
and Reinforcing Iron Workers, Local 771 Respondent
Indexed
as: Merk v. International Association of Bridge,
Structural, Ornamental and Reinforcing Iron Workers, Local 771
Neutral
citation: 2005 SCC 70.
File
No.: 30090.
2005:
February 10; 2005: November 24.
Present:
McLachlin C.J. and Major, Binnie, LeBel, Deschamps, Abella and Charron JJ.
on appeal from
the court of appeal for saskatchewan
Labour law — Employee
protection — Whistleblower — Provincial legislation providing
that no employer can discharge employee who “has reported . . . to a
lawful authority any activity that is or is likely to result in an
offence” — Employee fired for reporting to union officials alleged
financial abuse by supervisors — Whether “lawful authority” limited
to persons capable of exercising authority with respect to
offences — The Labour Standards Act, R.S.S. 1978, c. L‑1,
s. 74.
The appellant, M alleges that she was fired as bookkeeper and office
manager of the respondent trade union because she blew the whistle by informing
International Union of Iron Workers representatives of alleged financial
misconduct committed by her immediate supervisors at Local 771. Under
s. 74(1)(a) of the Saskatchewan Labour Standards Act, no employer
can discharge an employee because the employee “has reported . . . to
a lawful authority any activity that is or is likely to result in an offence”.
While the trial judge was satisfied that the financial misconduct amounted to
“an offence” and that M was terminated because she reported it, she
nevertheless concluded that M had not complained to a “lawful authority”. In
her view the expression “lawful authority” should be limited to a person or
institution authorized by law to deal with the activity as an offence and did
not include employers. Both the summary conviction appeal judge and the
majority of the Court of Appeal agreed with the interpretation of “lawful
authority” adopted by the trial judge.
Held (Deschamps J. dissenting): The appeal should be
allowed and a conviction entered.
Per McLachlin C.J. and Major, Binnie, LeBel, Abella and
Charron JJ.: The expression “lawful authority” in s. 74 of
The Labour Standards Act includes not only the police or other
agents of the state having authority to deal with the activity complained of
“as an offence”, but also individuals within the employer organization who
exercise lawful authority over the employee(s) complained about, or over the
activity that is or is likely to result in the offence. This interpretation of
s. 74 flows from the plain meaning of the expression “lawful authority”
and is consistent with its purpose and context. If the legislature had wished
to limit the scope of s. 74 to complaints to a “public authority” instead
of a “lawful authority” it would have said so. [3] [38]
The plain meaning of s. 74 is reinforced by the labour relations
context. Whistleblower laws, such as s. 74, seek to reconcile an
employee’s duty of loyalty to his or her employer with the public interest in
the suppression of unlawful activity. The employees’ duty of loyalty and the
public’s interest in whistleblowing is best reconciled with the “up the ladder”
approach, i.e. protecting employees who first blow the whistle to the boss
or other persons inside the employer organization who have the “lawful
authority” to deal with the problem. The legislature wanted a workplace free
of unlawful activity but it did not specify prosecution as the only or even the
preferred method of bringing about that result. By withholding whistleblower
protection unless and until the employee goes “outside” to the enforcement
authorities of the state, the Court of Appeal’s narrow interpretation of
s. 74 would discourage the internal resolution of alleged misconduct.
Failure by whistleblowing employees to “try to resolve the matter internally”
is condemned by courts and labour arbitrators as prima facie disloyal
and inappropriate conduct. There is nothing in s. 74 or surrounding
context to suggest that the Saskatchewan legislature in 1994 intended to expose
“loyal” employees to employer retaliation without a remedy. [16] [19] [23‑26]
[36]
M pursued an “up the ladder” reporting approach. Based on the trial
judge’s findings, M was discharged because she reported to a lawful authority
(the International Union of Iron Workers) the financial misconduct of her
supervisors. The alleged misconduct was an “activity that is or is likely to
result in an offence” within the meaning of s. 74. On a correct
interpretation of “lawful authority”, the union’s dismissal of M violated
s. 74(1)(a) of The Labour Standards Act. [42] [48]
Per Deschamps J. (dissenting): The wording of
s. 74 and its context do not indicate that the legislature intended to
extend protection to an employee who reports a suspected wrongdoing within an
organization. Broadening the definition of “lawful authority” to include
employers is therefore inconsistent with this Court’s approach to statutory
interpretation and the plain meaning of the provision. “Lawful authority”, as
used in s. 74, can only be understood to mean persons or entities with the
authority to enforce federal and provincial statutes. Since there is a
rational basis for the external reporting requirement, a court must not second‑guess
the legislature’s decisions about how to formulate effective labour policy.
[51] [54] [57]
Cases Cited
By Binnie J.
Referred to: Rizzo & Rizzo Shoes Ltd. (Re), [1998]
1 S.C.R. 27; Bell ExpressVu Limited Partnership v. Rex, [2002]
2 S.C.R. 559, 2002 SCC 42; Kolodziejski v. Auto Electric
Service Ltd. (1999), 177 Sask. R. 197; Re Ministry of Attorney‑General,
Corrections Branch and British Columbia Government Employees’ Union (1981),
3 L.A.C. (3d) 140; Haydon v. Canada, [2001]
2 F.C. 82; Read v. Canada (Attorney General) (2005), 30 Admin.
L.R. (4th) 218, 2005 FC 798; Re Simon Fraser University and
Association of University and College Employees, Local 2 (1985),
18 L.A.C. (3d) 361; Forgie and Treasury Board (Immigration Appeal
Board), [1986] C.P.S.S.R.B. No. 310 (QL); Re Treasury Board
(Employment & Immigration) and Quigley (1987), 31 L.A.C.
(3d) 156; Newfoundland and Labrador Nurses’ Union v. Health Care
Corp. of St. John’s, [2001] Nfld. L.A.A. No. 1 (QL); R.
v. Wust, [2000] 1 S.C.R. 455, 2000 SCC 18; R. v.
McIntosh, [1995] 1 S.C.R. 686; R. v. Hasselwander, [1993]
2 S.C.R. 398; R. v. Goulis (1981), 125 D.L.R.
(3d) 137.
By Deschamps J. (dissenting)
Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27;
Bell ExpressVu Limited Partnership v. Rex, [2002]
2 S.C.R. 559, 2002 SCC 42; R. v. B. (G.), [1990]
2 S.C.R. 57; R. v. Morin, [1992] 3 S.C.R. 286.
Statutes and Regulations Cited
Act respecting labour
standards, R.S.Q., c. N‑1.1, s. 122.
Criminal Code, R.S.C. 1985, c. C‑46,
ss. 40 , 279 , 294 , 369 , 425.1 .
Election Act, R.S.A. 2000, c. E‑1,
s. 161.
Employment Rights Act 1996 (U.K.), 1996,
c. 18, s. 43C(1)(a) [am. 1998, c. 23, s. 1].
Employment Standards Act,
R.S.B.C. 1996, c. 113, s. 83.
Employment Standards Act,
R.S.P.E.I. 1988, c. E‑6.2, s. 35.
Employment Standards Act, R.S.Y. 2002,
c. 72, s. 108.
Employment Standards Act, S.N.B. 1982,
c. E‑7.2, s. 28.
Employment Standards Act, 2000,
S.O. 2000, c. 41, s. 74.
Employment Standards Code,
R.S.A. 2000, c. E‑9, s. 125.
Employment Standards Code, S.M. 1998,
c. 29, s. 133.
Federal‑Provincial Agreements Act,
R.S.S. 1978, c. F‑13, s. 9.
Forest and Range Practices Act,
S.B.C. 2002, c. 69, s. 58.
Highway Traffic Act, R.S.N.L. 1990,
c. H‑3, s. 109.
Interpretation Act, 1995, S.S. 1995,
c. I‑11.2, ss. 10, 36.
Labour Standards Act, R.S.N.L. 1990,
c. L‑2, s. 78.
Labour Standards Act, R.S.N.W.T. 1988,
c. L‑1, s. 67.1.
Labour Standards Act, R.S.S. 1978,
c. L‑1, s. 74 [am. 1994, c. 39, s. 41].
Labour
Standards Act, 1969, S.S. 1969, c. 24, s. 64.
Labour Standards Act (Nunavut), R.S.N.W.T.
1988, c. L‑1, s. 67.1.
Labour
Standards Amendment Act, 2005, S.S. 2005, c. 16, s. 8.
Labour Standards Code, R.S.N.S. 1989,
c. 246, s. 30.
Mental Health Act, R.S.N.B. 1973,
c. M‑10, s. 1(1) “nearest relative”.
Mental Health Services Act, S.S. 1984‑85‑86,
c. M‑13.1, s. 28.2(1).
Mines and Minerals Act, S.M. 1991‑92,
c. 9, s. 232(1).
Privacy Act, R.S.N.L. 1990, c. P‑22,
s. 4.
.Privacy Act, R.S.S. 1978, c. P‑24,
s. 3.
Protected Disclosures Act 2000 (N.Z.),
2000, No. 7, s. 7.
International
Documents
European Communities. Commission Decision 99/352
of 28 April 1999 establishing the European Anti‑fraud Office
(OLAF), [1999] O.J. L. 136/20, art. 2.
European Communities. Council Decision 99/394 of
25 May 1999 concerning the terms and conditions for internal
investigations in relation to the prevention of fraud, corruption and any
illegal activity detrimental to the Communities’ interests, [1999] O.J.
L. 149/36.
European Communities. Staff Regulations of
officials of the European Communities, [1968] O.J. L. 56/1, arts. 22a and 22b
[added by Council Regulation 723/2004 of 22 March 2004 amending the Staff
Regulations of officials of the European Communities and the Conditions of
Employment of other servants of the European Communities, [2004] O.J. L.
124/1].
Authors Cited
Bennion, Francis Alan Roscoe. Statutory
Interpretation: A Code, 4th ed.
London: Butterworths, 2002.
Callahan, Elletta Sangrey,
Terry Morehead Dworkin and David Lewis. “Whistleblowing:
Australian, U.K., and U.S. Approaches to Disclosure in the Public
Interest” (2004), 44 Va. J. Int’l L. 879.
Côté, Pierre‑André. The Interpretation of
Legislation in Canada, 3rd ed. Scarborough,
Ont.: Carswell, 2000.
Driedger, Elmer A. Construction of
Statutes, 2nd ed. Toronto: Butterworths, 1983.
Dubin, Charles L., and John Terry. Whistleblowing
Study. Study commissioned by the Competition Bureau. Ottawa: Industry
Canada, 1997.
Graham, Randal N. Statutory
Interpretation: Theory and Practice. Toronto: Emond
Montgomery, 2001.
Laskin, Bora. “The Function of the Law” (1973),
11 Alta. L. Rev. 118.
Saskatchewan. Legislative Assembly. Debates
and Proceedings (Hansard), 4th Sess., 22nd Leg., April 22,
1994, p. 1785.
Sullivan, Ruth. Sullivan and Driedger on the
Construction of Statutes, 4th ed. Markham,
Ont.: Butterworths, 2002.
APPEAL from a judgment of the Saskatchewan Court of Appeal (Tallis,
Cameron and Gerwing JJ.A.) (2003), 238 Sask. R. 234, 305
W.A.C. 234, 233 D.L.R. (4th) 61, 28 C.C.E.L.
(3d) 179, [2004] 7 W.W.R. 290, 2004 CLLC ¶210‑005,
[2003] S.J. No. 640 (QL), 2003 SKCA 103, reversing a judgment of
Ball J. (2003), 229 Sask. R. 37, [2003] 6 W.W.R. 746,
2003 CLLC ¶220‑045, [2003] S.J. No. 15 (QL),
2003 SKQB 9, reversing a decision of McMurtry Prov. Ct. J.,
[2002] S.J. No. 555 (QL), 2002 SKPC 78. Appeal allowed,
Deschamps J. dissenting.
Roger J. F. Lepage, Kerri A. Froc and Alison Mitchell,
for the appellant.
Roderick M. Gillies, for the respondent.
The judgment of McLachlin C.J. and Major, Binnie, LeBel, Abella and
Charron JJ. was delivered by
1
Binnie J. _ In this case, the respondent
trade union seeks to narrow the protection given to employees under the
Saskatchewan “whistleblower” legislation contained in s. 74 of The Labour
Standards Act, R.S.S. 1978, c. L-1 (as am. S.S. 1994, c. 39, s. 41).
The somewhat unusual situation of a trade union seeking a dilution rather than
an expansion of employee rights arises from the fact that the respondent union
is itself being prosecuted by one of its own employees, Linda Merk.
2
Merk alleges that she was fired as bookkeeper and office manager of
Local 771 because she blew the whistle on alleged financial abuses committed by
her immediate supervisors, the president of the local, Charles Gumulcak, and
its business manager, Bert Royer.
3
I agree with Cameron J.A., dissenting in the Saskatchewan Court of
Appeal, that Linda Merk’s letter to the General President of the International
Union of Iron Workers that “blew the whistle” on these alleged financial abuses
was a complaint “to a lawful authority” within the meaning of the Act and
brought Merk within the Act’s protection. The plain meaning of “lawful
authority” includes those who exercise authority in both the private and public
context. If the legislature had wished to limit the scope of s. 74 to
complaints to a “public authority”, it would have said so. The
correctness of the broader interpretation is reinforced by the purpose and
context of s. 74, as will be seen. Based on the trial judge’s findings of
fact, the union’s dismissal of Merk violated the Act. The appeal must be
allowed and a conviction entered.
I. Facts
4
In the fall of 2000, Bert Royer received a Visa credit card for union
expenses. Shortly thereafter, Merk realized that Royer was double charging
expenses by putting them on his Visa card (which was paid directly by Local
771) despite already having received advances for the same expenses, or
claiming reimbursement for the same amount as if the expenses had been paid
from his own pocket. The trial judge found that in the result union funds were
misappropriated. For example, Royer received a hotel advance for travel
September 6-10, 2000, of $1,099.40. His actual hotel expense was $917.81.
There was no evidence of repayment to the union. On October 28, 2000, he
received $154.10 as an advance for hotel expenses. He then charged $162.64 on
the union Visa to cover his hotel expense. There is no evidence of repayment.
On October 19-20, 2000, Royer received an advance for an oil change and mileage
for a trip to Saskatoon. He then put the oil change and gas charges of $48 on
the union Visa. Merk alleged that Gumulcak was also collecting expenses to
which he was not entitled.
5
After Merk’s remonstration with Royer met with an angry response, Merk’s
father (a former business agent of Local 771) and three other union members
wrote to the General President of the International Union of Iron Workers in
Washington, Joseph Hunt, to complain that expense reimbursements to Royer and
Gumulcak were not being dealt with in accordance with the union constitution.
The General President assigned a union investigator from the International
Union of Iron Workers, one Fred Marr, who came to Saskatchewan to speak to
those involved, including Merk. Fred Marr subsequently reported that in his
view the only problem with the double-dipping expense claims was that the
by-laws of Local 771 did not specifically prohibit collecting more than once
for the same expenses. According to the trial judge, Marr believed that if the
by-laws were rewritten, the complaints would be resolved. She commented:
This is ridiculous. It should not be necessary to spell out in local
by-laws that expenses are to be reimbursed one time only.
([2002] S.J. No. 555 (QL), 2002 SKPC 78, at para. 8)
Following
receipt of Marr’s “report”, the executive of Local 771 met on September 21,
2001 and authorized the termination of Merk’s employment. She was not at that
time informed of this authorization and, for the next few weeks, her superiors
chose not to act on it.
6
After waiting a time for some response from the International Union of
Iron Workers following Marr’s “investigation”, Merk took it upon herself to
write to Joseph Hunt, the General President of the International Union of Iron
Workers, on October 19, 2001 setting out her complaints and saying:
I hope you will appreciate my concerns and inform me of your decisions
and subsequent actions regarding these serious problems by October 25, 2001.
Your response will dictate any further actions that I may need to take. Any
further delays will do nothing but jeopardize this local union which could
unfortunately prove harmful to the membership and to this organization as a
whole.
7
The response from the union was not what Merk anticipated. She was
dismissed from her job by letter dated November 5, 2001, signed by Royer and
Gumulcak. It said:
Due to a number of matters occurring during your employment; not the
least of which occurred in the last few days prior to your leaving the
workplace, as well as you forwarding your 19th of October 2001
correspondence to Joseph Hunt . . . and matters surrounding same,
the local union has found it necessary to terminate your employment. [Emphasis
added.]
II. Statutory
Provisions
8
The Labour Standards Act, s. 74, provides:
74(1) No employer shall discharge or threaten to discharge or
in any manner discriminate against an employee because the employee:
(a) has reported or proposed to report to a lawful authority any
activity that is or is likely to result in an offence pursuant to an Act or an
Act of the Parliament of Canada; or
(b) has testified or may be called on to testify in an
investigation or proceeding pursuant to an Act or an Act of the Parliament of
Canada.
(2) Subsection (1) does not apply where the actions of an employee
are vexatious.
III. Judicial
History
A. Trial
Judge ([2002] S.J. No. 555 (QL), 2002 SKPC 78)
9
McMurtry Prov. Ct. J. reviewed the law and concluded:
Merk certainly was terminated because of her pursuit of the issue of
Royer’s expenses through the union. Once it appeared to Royer that the union’s
investigation cleared him, he felt safe to fire her. [para. 18]
10
The trial judge was therefore “satisfied beyond a reasonable doubt that
Merk was terminated because she complained about Royer’s expenditures”
(para. 15). In terms of s. 74, Royer’s conduct qualified as an “activity
that is or is likely to result in an offence pursuant to an Act or an Act of
the Parliament of Canada”. However, the Act also requires that the firing be
related to a complaint to a “lawful authority”. On this point, the trial judge
said:
If the language of the section permitted me to
consider a member of the union bureaucracy as a lawful authority, I would have
convicted. However, “lawful authority” must be interpreted as a person or
institution authorized by law to investigate offences. If I am wrong and the
General President of the union is a lawful authority, given his ability to
remove any officer from his or her position, Merk’s complaint to Marr, the
President’s investigator, would meet the test. I am convinced that Merk
providing information to Marr is the reason she was dismissed. [Emphasis
added; para. 19.]
In other
words, but for a restrictive interpretation of the phrase “lawful authority” to
officials of the state (rather than a private entity such as a union), she
would have entered a conviction.
B. Summary Conviction Appeal Judge _ Ball J. ((2003), 229
Sask. R. 37, 2003 SKQB 9)
11
The Queen’s Bench judge agreed with the trial judge’s interpretation of
“lawful authority”, but allowed the appeal on other grounds (not here relevant)
and substituted a conviction (para. 51).
C. Court
of Appeal ((2003), 238 Sask. R. 234, 2003 SKCA 103)
12
Gerwing and Tallis JJ.A. allowed the appeal but agreed with the narrow
interpretation of “lawful authority” adopted in the courts below. Gerwing
J.A., basing herself in part on predecessor legislation, took the view that
the lawful authority must be one that is capable of exercising
authority, i.e., compelling obedience, with respect to the conduct reported as
an offence. Here the offence threatened to be reported, and the only one which
can sustain the charge, is fraud, and the Union hierarchy, while it can enforce
its own bylaws, has no capacity to deal with this as “an offence”. [para. 20]
13
Cameron J.A., dissenting, would have affirmed a conviction but on
grounds different from those of the summary conviction appeal court. In his
view, the General President was a “lawful authority” because the purpose of the
whistleblower law was “best attained by interpreting this expression liberally,
to include other persons in authority, including persons possessed of corporate
authority recognized by law to act upon the reported wrongdoing”
(para. 46).
IV. Analysis
14
Whistleblower laws create an exception to the usual duty of loyalty owed
by employees to their employer. When applied in government, of course, the
purpose is to avoid the waste of public funds or other abuse of state-conferred
privileges or authority. In relation to the private sector (as here), the
purpose still has a public interest focus because it aims to prevent wrongdoing
“that is or is likely to result in an offence”. (It is the “offence”
requirement that gives the whistleblower law a public aspect and filters out
more general workplace complaints.) The underlying idea is to recruit
employees to assist the state in the suppression of unlawful conduct. This is
done by providing employees with a measure of immunity against employer
retaliation. “[R]eports from insiders allow for early detection and reduction
of harm, reduce the necessity for and expense of public oversight and
investigation, and may ultimately deter malfeasance” (E. S. Callahan,
T. M. Dworkin and D. Lewis “Whistleblowing: Australian, U.K.,
and U.S. Approaches to Disclosure in the Public Interest” (2004), 44 Va. J.
Int’l L. 879, at p. 882).
15
The terminological debate in the Saskatchewan courts over the scope of
the words “lawful authority” in s. 74, which on a plain meaning (in my
view) includes a private authority as well as a public authority, is rooted in
a more philosophic issue. Is the Saskatchewan legislature’s intention best
respected by withholding s. 74 protection from employees unless and until
they take their complaint to the police or some other public official who can
“deal with the allegation qua offence”, as was held by the Saskatchewan
Court of Appeal (at para. 21), or is it best respected by extending the
protection to employees who go “up the ladder” inside the employer
organization in an effort to have the “activity” terminated rather than
prosecuted? A contextual and purposeful reading of s. 74 confirms its
plain meaning. Purpose and context are important, as Laskin J. (as he
then was) wrote over 30 years ago:
The distinction that I draw is between a purely formal, mechanical view
of the law, antiseptic and detached, and a view of the law that sees it as
purposive, related to our social and economic conditions, and serving ends that
express the character of our organized society.
(B. Laskin, “The Function of the Law” (1973), 11 Alta. L. Rev. 118,
at p. 119)
Here the
legislature speaks of “lawful authority”. This is a well-known concept. If,
for example, a landowner orders a trespasser off her property, she is
exercising as landowner “lawful authority” every bit as much as if a policeman
(whose lawful authority flows from a different source) were to do so. The
question is not whether the authority is public or private, but whether it is
lawful.
16
The general principles of labour relations provide, I believe, the
appropriate context. In employment law, there is a broad consensus that the
employee’s duty of loyalty and the public’s interest in whistleblowing is best
reconciled with the “up the ladder” approach. The Saskatchewan legislature was
not oblivious to the realities of the workplace.
A. Applicable
Rules of Statutory Interpretation
17
The direction from the Saskatchewan legislature to the courts in
s. 10 of The Interpretation Act, 1995, S.S. 1995, c. I-11.2, is
that “[e]very enactment shall be interpreted as being remedial and shall be
given the fair, large and liberal construction and interpretation that best
ensure the attainment of its objects.” The “objects” of s. 74 include
better protection for employees who not only uncover unlawful “activity” but
who bring this activity to the attention of a “lawful authority” who can do
something about it. The question is how best to attain that objective.
18
Allied with s. 10 of The Interpretation Act, 1995 is the
contextual approach to statutory construction encapsulated by E. A.
Driedger: “[T]he words of an Act are to be read in their entire context and in
their grammatical and ordinary sense harmoniously with the scheme of the Act,
the object of the Act, and the intention of Parliament.” (Construction of
Statutes (2nd ed. 1983), at p. 87). This approach has regularly been
adopted and applied in this Court: Rizzo & Rizzo Shoes Ltd. (Re),
[1998] 1 S.C.R. 27; Bell ExpressVu Limited Partnership v. Rex, [2002] 2
S.C.R. 559, 2002 SCC 42. The analysis is applied in several steps.
(1) Grammatical and Ordinary Sense
19
Gerwing J.A. held that “lawful authority” should be limited to someone
“in a position to deal with the allegation qua offence” (para. 21). In
her view the words “lawful authority” take their colour from the reference in
s. 74 to an “offence”, but it seems to me the word “offence” simply
delineates the sort of “activity” the legislature wished to ferret out. The
legislature’s desire was to have such “activity” brought to the attention of
someone who had the “lawful authority” (public or private) to remedy the
problem. While the response to unlawful conduct could include prosecution for
an “offence”, it could also include steps short of prosecution through action
by an employer or other private authority who has the lawful power to put a
stop to the wrongful conduct. The legislature wanted a workplace free of
unlawful activity. It did not specify prosecution as the only or even the
preferred method of bringing about that result. Taking this case as an
example, Joseph Hunt, the General President of the International Union of Iron
Workers was not a public official but he had lawful authority, through
mobilization of the powers of the international union, to bring to an end the
ongoing misappropriations of members’ money at Local 771. There is nothing in
the “grammatical and ordinary meaning” of s. 74 to cast doubt on this
broader interpretation of “lawful authority”.
(2) The Scheme of the Act
20
The Labour Standards Act is essentially employee protection
legislation. The whistleblower measure was expanded in 1994 together with
other provisions collectively justified by the Labour Minister to the
Legislative Assembly as follows:
The primary purpose of this Bill is to rectify some real
injustices — injustices which most fair-minded people admit exist and
need to be tackled, although they may not agree upon the means we have chosen.
(Saskatchewan, Legislative Assembly, Debates and Proceedings
(Hansard), 4th Sess., 22nd Leg., April 22, 1994, at p. 1785)
21
One of the injustices addressed in The Labour Standards Act
amendments was the problem of workplace retaliation against employees who blow
the whistle on unlawful conduct. The courts in Saskatchewan have called for a
“generous” interpretation of the Act. For example, Lane J.A., writing in
a somewhat different context for the court in Kolodziejski v. Auto Electric
Service Ltd. (1999), 177 Sask. R. 197 (C.A.), explained, at para. 18,
that:
Labour standards legislation is characterized as
“benefits-conferring legislation”. As such, it must be interpreted generously
and any doubt arising from difficulties in language must be resolved in
favour of the claimant. [Emphasis added.]
22
The appellant claims the benefit of the protection of the Act. The
union respondent would deny it.
(3) The Object of the Act
23
Section 74, as stated, seeks to reconcile an employee’s duty of loyalty
to his or her employer with the public interest in the suppression of unlawful
activity. A long line of decisions in the labour relations field affirms that
this balance is best achieved if “loyal” employees are encouraged to resolve
the problems internally rather than marching forthwith to the police,
i.e. work with internal remedies before going public. Yet the
interpretation given s. 74 by the Saskatchewan Court of Appeal denies the
“loyal” employee protection: the employee only obtains protection when the
complaint is taken outside the employer organization to the police or other
public authority. This is the antithesis of good labour relations policy, as
noted by J. M. Weiler almost a quarter of a century ago in his
arbitral award in Re Ministry of Attorney-General, Corrections Branch and
British Columbia Government Employees’ Union (1981), 3 L.A.C. (3d) 140, at
p. 163:
The duty of fidelity does not mean that the Daniel Ellsbergs and Karen
Silkwoods of the world must remain silent when they discover wrongdoing
occurring at their place of employment. Neither the public nor the employer’s
long-term best interests are served if these employees, from fear of losing their
jobs, are so intimidated that they do not bring information about wrongdoing at
their place of employment to the attention of those who can correct such
wrongdoing. However, the duty of fidelity does require the employee to exhaust
internal “whistle-blowing” mechanisms before “going public”. These
internal mechanisms are designed to ensure that the employer’s reputation is
not damaged by unwarranted attacks based on inaccurate information. Internal
investigation provides a sound method of applying the expertise and experience
of many individuals to all problems that may only concern one employee.
[Emphasis added.]
24
This so-called “up the ladder” approach has also been favoured by courts
and other labour arbitrators. In Haydon v. Canada, [2001] 2 F.C. 82
(T.D.), Tremblay-Lamer J. stated, at para. 120:
The applicants endeavoured on several occasions to have their concerns
addressed internally without success. As a general rule, public criticism will
be justified where reasonable attempts to resolve the matter internally are
unsuccessful. [Emphasis added.]
See also Read
v. Canada (Attorney General) (2005), 30 Admin. L.R. (4th) 218, 2005 FC 798,
per Harrington J., at para. 123; Re Simon Fraser University and
Association of University and College Employees, Local 2 (1985), 18 L.A.C.
(3d) 361 (R. B. Bird); Forgie and Treasury Board (Immigration
Appeal Board), [1986] C.P.S.S.R.B. No. 310 (QL) (M. Bendel); Re
Treasury Board (Employment & Immigration) and Quigley (1987), 31 L.A.C.
(3d) 156 (J. M. Cantin), and Newfoundland and Labrador Nurses’
Union v. Health Care Corp. of St. John’s, [2001] Nfld. L.A.A. No. 1 (QL)
(P. Kelsey), at paras. 292-94, 298-99 and 312. Many of these cases arose
in relation to public sector employees where the public interest in
“whistleblowing” may be more obvious, but the need in the private sector to
strike a proper balance is the same.
(4) The Public Policy Debate
25
Saskatchewan is not alone in its desire to protect legitimate
whistleblowers. Amongst other more or less contemporaneous initiatives was the
report to the federal government by the former Chief Justice of Ontario,
Charles L. Dubin, who wrote in contemplation of amendments to the Competition
Act, R.S.C. 1985, c. C-34 , that he too supported an “up the ladder”
approach:
[T]he decisions of arbitral panels hearing
grievances from whistleblowing employees suggest that the employee’s duty of
fidelity is a strong one, and is generally breached when an employee criticizes
his or her employer publicly or discloses information that damages the
employer’s interests. An employee may be justified in going public to expose
wrongdoing or illegal acts by the employer. But in order to successfully rely
on that justification, the employee must first try to resolve the matter
internally. Although these same principles would probably apply to common
law actions for wrongful dismissal brought by non-unionised employees, there do
not appear to be any reported judgments that deal with this issue. [Emphasis
added.]
(C. L. Dubin and J. Terry, Whistleblowing Study
(1997), at p. 20)
Failure to
“try to resolve the matter internally” is condemned by courts, labour
arbitrators and other commentators as prima facie disloyal and
inappropriate conduct. It would be anomalous to interpret s. 74 as requiring
recourse to outside agencies as a condition precedent to protection.
26
The correctness of the broader approach is confirmed by the experience
in many other jurisdictions. In Britain, for example, whistleblower protection
contained in the Employment Rights Act 1996 (U.K.), 1996, c. 18,
requires (except in special circumstances) that an employee first make a good
faith disclosure internally, either to his employer (s. 43C(1)(a)) or to
another “internal” person when the worker reasonably believes that the relevant
failure relates to the conduct of that person or that that person has legal
responsibility over the matter. In New Zealand, the Protected Disclosures
Act 2000 (N.Z.), 2000, No. 7, which covers both the public and private
sectors, requires whistleblowers to report through internal channels (with a
few minor exceptions) before blowing the whistle publicly (s. 7). In
Europe, the so-called Whistleblowers’ Charter, 1999 is administered by the
Anti-Fraud Office of the European Commission and creates procedures that
require employees to exercise all internal avenues for reporting misconduct
before they can blow the whistle to an outside authority. (See art. 2 of
Commission Decision dated April 28, 1999 (1999/352/EC, ECSC, Euratom), [1999]
O.J. L. 136/20, and related Council Decision dated May 25, 1999
(1999/394/EC, Euratom), [1999] O.J. L. 149/36; and arts. 22a and 22b of
the Staff Regulations of officials of the European Communities, [1968] O.J. L.
56/1 (amended by Council Regulation (EC, Euratom) No. 723/2004 dated March 22,
2004, [2004] O.J. L. 124/1.) There is nothing in s. 74 or surrounding
context to suggest that the Saskatchewan legislature in 1994 intended to expose
“loyal” employees to employer retaliation without a remedy.
(5) Avoidance of Anomalous Results
27
The argument that an employer can dismiss without fear of prosecution an
employee for bringing serious wrongdoing to its attention internally, but
cannot do so as soon as the employee goes to outside authorities, invites
rejection on the basis of irrationality, as described in R. Sullivan, Sullivan
and Driedger on the Construction of Statutes (4th ed. 2002), at p. 246:
A variation on irrational distinction occurs when an interpretation
leads to an outcome in which persons deserving of better treatment receive
worse treatment or vice versa.
See also P.-A.
Côté, The Interpretation of Legislation in Canada (3rd ed. 2000), at
pp. 451-52. In R. v. Wust, [2000] 1 S.C.R. 455, 2000 SCC 18, our
Court declined to accept the interpretation of a sentencing provision which
“would reward the worst offender and penalize the least offender” (para. 42).
A comparable anomaly would arise here if a narrow view of “lawful authority”
were adopted.
(6) Legislative History
28
Part of Driedger’s “entire context” is legislative history. The
majority opinion of Gerwing J.A. was in part predicated on her view that s. 74
was intended merely as an incremental advance on an earlier immunity clause
contained in s. 64 (later renumbered s. 74), which itself was limited to
cooperation with public authorities:
64. No employer shall discharge
or threaten to discharge or in any manner discriminate against an employee
because the employee has testified or is about to testify in an
investigation or proceeding held or to be held pursuant to the provisions of
this Act, or an employee who makes a complaint or furnishes information to
the minister or his agent under this Act.
(The Labour Standards Act, 1969, S.S. 1969, c. 24)
On this basis
Gerwing J.A. concluded:
The current s. 74 broadened the protection to other statutes, but
nothing in its wording or in the legislative history suggests that the term
“lawful authority” should be extended to someone not in a position to deal with
the allegation qua offence. [para. 21]
29
There are, of course, legislative provisions in other jurisdictions that
adopt this narrower approach. Section 425.1 of the Criminal Code,
R.S.C. 1985, c. C-46 , for example, gives protection to employees who blow
the whistle to “a person whose duties include the enforcement of federal or
provincial law”. It will be noted, however, that the wording of the Criminal
Code is a good deal more explicit in its restricted scope. The effect of
the majority decision in the Saskatchewan Court of Appeal, with respect, is to
read into s. 74 the more restrictive language of the Criminal Code
without textual or contextual justification.
30
The aim of predecessor sections to s. 74 was to encourage employee
cooperation with government officials in labour matters, and was typical of the
protection that is found in most Canadian labour codes; see, e.g., Employment
Standards Act, R.S.B.C. 1996, c. 113, s. 83; Employment Standards
Code, R.S.A. 2000, c. E‑9, s. 125; The Employment Standards Code,
S.M. 1998, c. 29, s. 133; Employment Standards Act, 2000, S.O.
2000, c. 41, s. 74; An Act respecting labour standards, R.S.Q., c. N‑1.1,
s. 122; Employment Standards Act, S.N.B. 1982, c. E-7.2, s. 28; Employment
Standards Act, R.S.P.E.I. 1988, c. E-6.2, s. 35; Labour Standards Code,
R.S.N.S. 1989, c. 246, s. 30; Labour Standards Act, R.S.N.L. 1990, c.
L-2, s. 78; Labour Standards Act, R.S.N.W.T. 1988, c. L-1, s. 67.1; Labour
Standards Act (Nunavut), R.S.N.W.T. 1988, c. L-1, s. 67.1; Employment
Standards Act, R.S.Y. 2002, c. 72, s. 108.
31
In recent years, however, legislative horizons have expanded. Section
74 is not on its face directed to cooperation between employees and government
officials. Having regard to the consideration already mentioned it seems to me
that s. 74 should be seen as part of a broader legislative reform rather than
the narrower incremental step favoured by the Saskatchewan Court of Appeal.
(7) Penal Provision
32
The respondent says that s. 74 is a penal provision and that it
must therefore be read restrictively. Gerwing J.A., at para. 25 of her
judgment, concluded that “the interpretation of a penal statute that is
ambiguous must be resolved in a manner favourable to the accused person”: R.
v. McIntosh, [1995] 1 S.C.R. 686, at paras. 38-39.
33
In my view, with respect, this approach is of limited value when
interpreting a regulatory statute such as The Labour Standards Act. If
it is concluded in all the relevant circumstances that the legislature intended
a broad approach, that is the approach that will be adopted. In R. v.
Hasselwander, [1993] 2 S.C.R. 398, the Court addressed the interpretation
of the definition of “prohibited weapon” in the Criminal Code , and noted
that while one possible definition would bring the accused’s weapon within the
prohibition, the other would not. In resolving this issue, Cory J. adopted an
earlier dictum of Martin J.A. of the Ontario Court of Appeal in R. v.
Goulis (1981), 125 D.L.R. (3d) 137:
. . . even with penal statutes, the real intention of the
legislature must be sought, and the meaning compatible with its goals applied.
[p. 413]
Sullivan also
stated, at p. 387:
The rule [of strict construction] is difficult to reconcile with
federal and provincial Interpretation Acts which provide that all legislation
is to be deemed remedial and given a liberal and purposive interpretation. In
the clearest possible language, this statutory directive requires doubts and
ambiguities in penal legislation to be resolved in a manner that promotes the
purpose of the legislation, regardless of the impact on accused persons.
See also Côté,
at p. 477.
34
Reference might also usefully be made to R. N. Graham, Statutory
Interpretation: Theory and Practice (2001), at pp. 210-15, and to
F. A. R. Bennion, Statutory Interpretation: A Code (4th ed.
2002), at p. 706:
In accordance with the basic rule of statutory
interpretation, a penal enactment will not be given a strict construction if
other interpretative factors weigh more heavily in the scales.
35
I conclude that in the circumstances of this case “other interpretative
factors” outweigh the principle of strict construction of penal statutes relied
upon by the respondent.
B. Conclusion With Respect to the Scope of
Employee Protection Afforded by Section 74
36
The interpretation of s. 74 adopted by the majority of the Saskatchewan Court
of Appeal would discourage the internal resolution of alleged misconduct by
withholding whistleblower protection unless and until the employee goes
“outside” to the enforcement authorities of the state. For the reasons given,
I believe its interpretation of “lawful authority” is too narrow. Section 74
protection should be extended to employees who first blow the whistle to the
boss or other persons inside the employer organization who have the
“lawful authority” to deal with the problem. If the problem is not resolved
internally, then employees can go “outside” to the police or another
enforcement agency, but in order to obtain the protection of s. 74, it is
not necessary that they do so.
37
I should add that there may well be circumstances where an employee is
fully justified in not seeking an internal remedy but in going directly to the
police, as where (for example) it is feared that the employer may destroy
evidence. Whether or not an employee is justified in bypassing internal
remedies will depend on the circumstances. My point is simply that a suitable
“lawful authority” may be found inside as well as outside the
employer organization, and if an employee chooses to go the inside route and
suffers retaliation, the protection of s. 74 is still available.
38
For the foregoing reasons, I conclude that the expression “lawful
authority” in s. 74 includes not only the police or other agents of the state
having authority to deal with the activity complained of “as an offence” but
also individuals within the employer organization who exercise lawful authority
over the employee(s) complained about, or over the activity that is or is
likely to result in the offence.
C. Subsequent
Amendments to Section 74
39
My colleague Deschamps J. notes that about a year after the decision of
the Court of Appeal in this case, the Saskatchewan legislature amended
s. 74 to provide expressly that “lawful authority” includes “up the
ladder” supervisors:
74 . . .
(3) In this section, “lawful authority” means:
(a) any police or law enforcement agency with respect to an offence
within its power to investigate;
(b) any person whose duties include the enforcement of federal or
provincial law with respect to an offence within his or her power to
investigate; or
(c) any person directly or indirectly responsible for supervising
the employee.
(The Labour Standards Amendment Act, 2005, S.S. 2005,
c. 16, s. 8)
40
From this my colleague concludes that we should infer that the
legislature intended to expand the meaning of “lawful authority” to
include supervisors. I do not agree. Section 36 of The Interpretation Act,
1995 of Saskatchewan provides that such an inference is not permissible.
Section 36 says:
36(1) The repeal or the amendment of a provision in an enactment
does not imply:
(a) . . .
(b) a declaration as to the previous state of the law; or
(c) a declaration that the law pursuant to the enactment prior to the
repeal or amendment was different from the law as it is pursuant to the
enactment as amended.
(2) The re-enactment, revision, consolidation or amendment of a
provision in an enactment does not imply an adoption of any judicial or other
interpretation of the language used in the provision or of similar language.
41
Equally consistent with the legislative amendment to s. 74 is the
explanation (which I think is more likely) that the Saskatchewan legislature
did not agree with the way in which the Saskatchewan Court of Appeal in this
case had interpreted its handiwork. In any event such speculation either way
is foreclosed by s. 36 of The Interpretation Act, 1995.
D. Application
to the Facts of This Case
42
The appellant certainly pursued an “up the ladder” reporting approach.
Prior to her termination, she had progressively disclosed Royer’s and
Gumulcak’s alleged misappropriation of union funds (1) to Royer himself, as her
supervisor; (2) to a trustee of Local 771 who along with two other trustees
were responsible to the membership for the finances; (3) to the union’s
auditor who could have flagged the problem in his audit; (4) to the
investigator, Fred Marr appointed by the General President of the International
Union of Iron Workers; (5) to the General President of the International Union
of Iron Workers; and only when none of these people could be stirred to action,
(6) to the police. In reaching my conclusions, I do not wish to be taken as
suggesting that Merk’s complaint to the union trustee of Local 771 or its
auditor were not to a “person in authority”. The appeal was argued by both
sides on the basis of Merk’s complaints to the International Union of Iron
Workers representatives. As no argument was addressed to the status of the
local people, and no provision of the local constitution was put forward to
support that view, I say no more about potential s. 74 protection in that
regard.
43
There is some suggestion in the union’s argument that Merk’s allegations
were made irresponsibly or in bad faith, leading the employer (the union) to
conclude that she was unsuitable for the job. In effect, the union says the
cause of dismissal was not retaliation for whistleblowing, but because of its
conclusion about Merk’s unsuitability illustrated by her irresponsible
allegations. This argument, too, collapses in the face of findings of fact by
the trial judge, who stated:
Until the date of her termination, Ms. Merk had
justification for being concerned that the payments were improper and it was
reasonable for her to believe that some of Royer’s expenditures were a fraud on
the union. In my view, that is sufficient to meet the threshold in section
74. It would be unreasonable to require that she have evidence that
establishes, beyond a reasonable doubt that an offence has occurred.
[para. 16]
44
Who then, on the facts of this case, is a person with “lawful
authority”? The trial judge answered that question too. Had she been
persuaded as a matter of law that “lawful authority” included authorities
internal to a union or corporation, she would have convicted. To repeat her
finding, at para. 19 of her judgment:
If I am wrong and the General President of the union is a lawful
authority, given his ability to remove any officer from his or her position,
Merk’s complaint to Marr, the President’s investigator, would meet the test. I
am convinced that Merk providing information to Marr is the reason she was
dismissed.
45
The reason the trial judge put her focus on Merk’s communication to “the
President’s investigator”, rather than on her October 19, 2001 letter to the
General President himself, is that the executive of Local 771 authorized the
firing of Merk on September 21, 2001, almost a month prior to the date of her
letter to General President Hunt of October 19, 2001. The union says the
letter to Hunt is irrelevant.
46
The further facts are, however, that such “authorization” was not acted
on until November 5, 2001. The letter of dismissal specifically refers to
“your 19th of October 2001 correspondence to Joseph Hunt . . . and
matters surrounding same”. The “matters surrounding same” obviously included
Merk’s agitation about the improper expense claims going back for more than a
year to the fall of 2000.
47
Irrespective of the authority given by the union executive to Royer and
Gumulcak on September 21, 2001 to fire Merk, she knew nothing about it until
November 5, 2001. That was the effective date of her dismissal. In terms of
s. 74, the actus reus was not complete until November 5, 2001 and
at that time the mens rea of Gumulcak and Royer was inflamed by Merk’s
letter to the General President of October 19, 2001, and they so stated in the
letter of dismissal on that date. Accordingly, the actus reus and the
requisite mens rea did not coincide until November 5, 2001 at which time
the s. 74 offence was complete. The union having referenced Merk’s
October 19, 2001 complaint in its letter of dismissal, it does not now lie in
the union’s mouth to argue that her October 19th complaint to President Hunt
about alleged financial misconduct did not at least contribute to her
dismissal.
V. Conclusion
48
In summary, based on the trial judge’s findings, Merk was discharged
because she reported to a lawful authority (the International Union of Iron
Workers) the financial misconduct of Gumulcak and Royer. The alleged
misconduct was an “activity that is or is likely to result in an offence”
within the meaning of s. 74. The offence was complete on November 5,
2001. On a correct interpretation of “lawful authority”, there should have
been a conviction. The appeal should therefore be allowed and a conviction
entered. As we are advised that this is a private prosecution, the appellant
will have her costs here and in the courts below on a party and party basis.
The matter is returned to the trial judge to impose sentence and consider the
appellant’s claim for further and other relief.
The following are the reasons delivered by
49
Deschamps J.
(dissenting) — The issue raised by this case is one of pure statutory
interpretation. Rather than determining legislative intent, the majority asks
whether employee protection can be best achieved by extending the meaning of s.
74 of The Labour Standards Act, R.S.S. 1978, c. L‑1 (as am.
S.S. 1994, c. 39, s. 41) to employees who blow the whistle inside an
organization, or by withholding protection from them. In effect, the majority
reasons that because the purpose of the legislation is remedial, the plain
meaning of the provision should be ignored in order to provide the broadest
protection possible. This is, in my view, a circular approach which strays far
from the principles of statutory interpretation. I would therefore restate the
question and ask what the legislature’s intention is, rather than identifying
the desired protection and asking whether the legislature should have afforded
it to employees.
50
The majority raises an important concern about the peculiar situation
created by s. 74. It may indeed appear unsatisfactory that an employee who
reports alleged wrongdoing to his or her superiors does not receive the same
protection as an employee who reports directly to an outside agency. However, I
disagree with the majority’s broad interpretation of the expression “lawful
authority”. Amendments are left to the legislature; it is not for the Court to
stretch the rules of statutory interpretation.
51
“Lawful authority”, as used in s. 74, can only be understood to mean a
person or entity with the authority to enforce federal and provincial
statutes. Extending “lawful authority” to the employer requires reading in
words which do not accord with the plain meaning of the provision and go
against this Court’s interpretative approach.
I. What is
“Lawful Authority”?
52
The Court has repeatedly held that “there is only one principle or
approach” to statutory interpretation, “namely, the words of an Act are to be
read in their entire context and in their grammatical and ordinary sense
harmoniously with the scheme of the Act, the object of the Act, and the
intention of Parliament” (E. A. Driedger, Construction of Statutes (2nd
ed. 1983), at p. 87, as cited in Rizzo & Rizzo Shoes Ltd. (Re),
[1998] 1 S.C.R. 27, at para. 21; see also Bell ExpressVu Limited Partnership
v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42, at para. 26).
53
On its face, “lawful authority” refers to a person or entity authorized
to exercise public power. This meaning is reinforced in s. 74 by the term’s
close proximity to “an offence pursuant to an Act or an Act of the Parliament
of Canada”, which suggests, as Gerwing J.A. of the Court of Appeal noted, that
the lawful authority must be capable of “compelling obedience, with respect to
the conduct reported as an offence” (para. 20).
54
The majority contends that a narrow reading of “lawful authority” leads
to irrational consequences and therefore cannot be supported. It is a
well-established principle of statutory interpretation that the legislature
does not intend to produce consequences that are absurd, illogical or
incoherent (Rizzo & Rizzo, at para. 27). With respect, however,
requiring employees to report suspected offences to a public authority cannot
be viewed as irrational. The legislature may have been motivated by a number of
concerns. For example, persons or entities exercising public power, such as
the police, are uniquely situated to enforce the law and to deal with
allegations of criminal or quasi‑criminal activity. As the Court of
Queen’s Bench judge observed in this case, encouraging employees to report
internally could therefore work “against the goal of promoting disclosure to
those responsible for enforcing federal and provincial statutes” ((2003), 229
Sask. R. 37, 2003 SKQB 9, at para. 39). Whatever the legislature’s purpose in
creating an external reporting requirement, s. 74 falls far short of
“irrationality”. Given that there is a rational basis for the requirement of
reporting to an entity authorized to exercise public power, the Court must not
second‑guess the legislature’s decisions about how to formulate
effective labour policy.
55
A plain reading of “lawful authority” is also in line with analogous
uses of the term in other federal and provincial statutes. “Lawful authority”
appears repeatedly in the Criminal Code, R.S.C. 1985, c. C-46 , as well
as in multiple provincial statutes as varied as the Alberta Election Act,
R.S.A. 2000, c. E-1, the Manitoba Mines and Minerals Act, S.M. 1991‑92,
c. 9, and the Newfoundland and Labrador Highway Traffic Act, R.S.N.L.
1990, c. H-3. While these statutes do not specifically define “lawful
authority” or, where applicable, its equivalent in French as a police officer
or public agency, the term is consistently used in relation to an activity which
is an offence unless carried out with authority conferred by statutory or
common law. As such, an employer cannot be considered a “lawful authority”
under s. 74 (see, for example, Criminal Code, ss. 40 , 279 , 294 and 369 ;
Alberta, Election Act, s. 161; British Columbia, Forest and Range
Practices Act, S.B.C. 2002, c. 69, s. 58; Manitoba, Mines and Minerals
Act, s. 232(1); Newfoundland and Labrador, Highway Traffic Act, s.
109; Saskatchewan, The Federal‑Provincial Agreements Act, R.S.S.
1978, c. F‑13, s. 9).
56
In the small number of statutes where “lawful authority” is given an
expanded meaning, the intention to do so is clear from the provision. The
Saskatchewan legislature has, for example, extended lawful authority beyond its
plain meaning in two provisions. Section 3 of the Saskatchewan Privacy Act,
R.S.S. 1978, c. P‑24, provides that proof of surveillance of an
individual without the consent of the individual “or some other person who has
the lawful authority to give the consent” is prima facie evidence of a
violation of privacy. Similarly, s. 28.2(1) of the Saskatchewan Mental
Health Services Act, S.S. 1984‑85‑86, c. M‑13.1, provides
that the director of mental health services may order the return of someone to
another province if “an order has been issued by a person with the lawful
authority to make that order in that jurisdiction for the person to be given a
compulsory psychiatric examination” (see also Newfoundland and Labrador,
Privacy Act, R.S.N.L. 1990, c. P‑22, s. 4; New Brunswick, Mental
Health Act, R.S.N.B. 1973, c. M‑10, s. 1(1) “nearest relative”). By
comparison, s. 74 contains no modifying phrase extending “lawful authority” to
encompass those who supervise employees, and must, as a result, rest on the
plain meaning of the term.
57
The object of the Act is obviously remedial and, to this end, s. 74
affords a remedy to complainants who turn to a public authority for
assistance. However, simply finding that the purpose of the Act is remedial is
not in itself determinative and we must still ask how far the legislature
intended to go. The wording of the statute and its context, in my view, do not
indicate that the legislature intended to extend protection to an employee who
reports a suspected wrongdoing within an organization. Broadening the
definition of “lawful authority” and of its equivalent in French to include
employers is therefore inconsistent with the plain meaning of the provision and
this Court’s approach to statutory interpretation.
58
As a matter of policy, the Saskatchewan legislature has already
exercised its legislative mandate to strengthen whistleblower protections by
amending s. 74. The amended provision (S.S. 2005, c. 16, s. 8), which came into
force on May 27, 2005, expressly broadens the definition of “lawful authority”:
74(1) No employer shall discharge or threaten to discharge, take
any reprisal against or in any manner discriminate against an employee because
the employee:
(a) has reported or proposed to report to a lawful authority any
activity that is or is likely to result in an offence pursuant to an Act or an
Act of the Parliament of Canada; or
(b) has testified or may be called on to testify in an investigation or
proceeding pursuant to an Act or an Act of the Parliament of Canada.
(2) Subsection (1) does not apply where the actions of an employee are
vexatious.
(3) In this section, “lawful authority” means:
(a) any police or law enforcement agency with respect to an offence
within its power to investigate;
(b) any person whose duties include the enforcement of federal or
provincial law with respect to an offence within his or her power to
investigate; or
(c) any person directly or indirectly responsible for supervising the
employee.
I do not refer
to the amendment, as my colleague Binnie J. suggests, as argument to infer the
legislative intent but only to note that by explicitly expanding the definition
of lawful authority to include supervisors, the legislature effectively
resolved the dilemma highlighted by the majority without distorting the plain
meaning of the term.
II. Application
to the Facts of the Case
59
The trial judge found that the decision to terminate Merk was made by
the Executive Board of the union on September 21, 2001. Although McMurtry
Prov. Ct. J. found that “Merk certainly was terminated because of her pursuit
of the issue of Royer’s expenses through the union”, she concluded that the
decision to terminate Merk occurred before Merk threatened to go to the police in
her letter of October 19th ([2002] S.J. No. 555 (QL), 2002 SKPC 78, at
para. 18). The trial judge based this finding on several factors, including
the minutes of the Executive Board meeting at which the termination was
authorized, the similarity between the draft termination letter and the letter
that was ultimately sent, and Royer’s testimony that he did not terminate Merk
immediately because she was ill. The trial judge concluded that “[o]nce it
appeared to Royer that the union’s investigation cleared him, he felt safe to
fire her” (para. 18).
60
The Court of Appeal refused to interfere with the trial judge’s
decision, finding that “[t]here was evidence to support [the factors] she
accepted and no reason she could not have rejected the implied threat in the
letter” ((2003), 238 Sask. R. 234, 2003 SKCA 103, at para. 18). I agree with
the Court of Appeal in this regard. While the trial judge could have explored
the events following September 21 more fully, an appeal court only has a
limited role (R. v. B. (G.), [1990] 2 S.C.R. 57; R. v. Morin,
[1992] 3 S.C.R. 286). There is no basis for interfering with the trial judge’s
findings of facts.
III. Conclusion
61
Statutory provisions must be interpreted in their entire context and
on their plain and ordinary meaning. Reading in a broader definition of “lawful
authority” goes against this Court’s interpretative tradition and creates
inconsistencies with the use of the term in other legislative contexts.
Ultimately it is up to the legislature, as occurred in this case, to extend the
scope of the statute through legislative amendment. Having regard to all of
these factors, I conclude that the Court of Appeal was correct to decline to
intervene. I would have dismissed the appeal.
Appeal allowed with costs, Deschamps
J. dissenting.
Solicitors for the appellant: Balfour Moss, Regina.
Solicitors for the respondent: Plaxton Gillies,
Saskatoon.