Oct 27, 2020

In some circumstances, a practitioner is permitted to disclose otherwise confidential information and publicly criticize their employer, where there is a compelling public right for the public to know. Generally for the whistleblower defence to succeed, four criteria must be met:

1. The concerns must be significant, for example, jeopardizing life, health or safety;

2. The issue must be more than a difference of opinion;

3. The practitioner must have taken all reasonable steps to address the matter internally before “going public”; and

4. The concerns must be accurate.

In Mulligan v Ontario Civilian Police Commission, 2020 ONSC 2031, <http://canlii.ca/t/j6fm9>, an OPP police Sergeant submitted a letter to the editor of the Sudbury Star criticizing the move of an OPP helicopter from Sudbury to Orillia saying it would jeopardize public safety. He was disciplined for breach of confidence and discreditable conduct. On judicial review the Divisional Court upheld the finding that the whistleblower defence was not available to Sergeant Mulligan because he had not first raised his concerns within his chain of command. The Court said:

There may be a situation where the issues raised are so pressing and urgent and the chain of command so obviously dysfunctional or corrupt that going public first is the only reasonable option. However, Sergeant Mulligan never argued that the urgency of the situation made it impractical for him to raise the matter internally first. Furthermore, the evidence he presented did not meet the threshold required to demonstrate the type of dysfunctionality or corruption that would be required for this type of exception to the usual rule.

The whistleblower defence is not easily established.