Chris Pecora

Blowing the Whistle

Speaking up must be protected.

By Graham Thomson

On October 3, 2019, Alberta’s Public Interest Commissioner, Marianne Ryan, dropped a bombshell report. After an extensive investigation that included interviews with numerous Alberta Energy Regulator employees and analysis of more than 5,700 documents, Ryan concluded that AER president Jim Ellis “demonstrated a reckless and wilful disregard for the proper management of public funds, public assets and the delivery of a public service, which under the act constitutes gross mismanagement.” Put in more politically salacious terms, Ellis (whose base salary was $525,000) and several senior executives broke AER fiscal guidelines to live the high life by flying first-class and staying in $500-a-night hotels. Even more troubling, they conspired to use provincially owned intellectual property for their own benefit and spent millions of public dollars on a private scheme to protect their own future employment.

Ellis had left his position by the time Ryan issued her report, but his departure was perhaps inevitable the moment an AER employee blew the whistle on him to the Public Interest Commissioner’s office. (The employee remains anonymous to the AER and to the public.) Although Ellis was deemed guilty of “gross mismanagement,” the commissioner didn’t think the evidence warranted criminal charges, thereby leaving the former head of the AER to be pilloried in the court of public opinion. All in all, this was a high-profile victory for a diligent commissioner, a courageous AER employee and all citizens under the province’s Public Interest Disclosure (Whistleblower Protection) Act. Created in 2013, the act encourages government employees to bring forward complaints about wrongdoing.

But while the AER case might be a victory for the act, it seems to be the tip of a very hollow iceberg. In 2020–2021, for example, the Public Interest Commissioner’s office received 164 tips but only started 12 full-scale investigations. The office doesn’t see that as a failure to investigate; it says many complaints fall short of the threshold for investigation, while for others the office found other ways to resolve the problem.

Our government has done virtually nothing to protect whistleblowers who speak up in the public interest.

Critics, however, say the statute not only needs to be broadened to cover the private sector, it must do a better job protecting those already under it. Cameron Hutchison is a law professor at the University of Alberta who in 2020 wrote Whistleblowers Not Protected: How the Law Abandons Those Who Speak Up in the Public Interest of Alberta. “Successive Alberta governments have done virtually nothing to protect whistleblowers, confidential journalist sources and citizens who speak up in the public interest,” wrote Hutchison. “Among North American jurisdictions, Alberta is a laggard.” In an interview for this column, Hutchison pointed out that even though 60 whistleblowers in Alberta over the years complained they’d been punished for speaking up, the commissioner deemed none were the victim of a “reprisal.” Hutchison suspects most people don’t trust the system, and thus many simply remain silent.

One whistleblower who in hindsight wishes she had used the system is Ariella Kimmel, a former political staffer in the UCP government who in October 2021 launched a lawsuit against the premier’s office—but not Premier Jason Kenney personally—for wrongful dismissal, alleging she suffered from a toxic workplace culture and was fired as retribution for speaking out about misconduct and sexual harassment issues. (In December 2021 the government denied any wrongdoing.)

Kimmel said she initially didn’t think of herself as a whistleblower, but now believes it would have been better to at least try using the whistleblower act. “I knew that the people I was speaking to were aware of the problems, and even worse, and were doing nothing,” Kimmel told me. “If I’d used another mechanism to force some kind of change, it would have been better for a lot of people—and a lot of people have suffered because of the work environment in that building.”

In 2020 a legislative all-party committee launched a review of the act. In 2021, after hearing from Commissioner Ryan, it issued 10 recommendations to improve the legislation by, among other things, extending protection from reprisals to people who blow the whistle after leaving the employ of the government. Any improvement to protect more whistleblowers would be welcome, particularly when Alberta’s UCP government has proven to be hostile to criticism, especially from within.

Even though the Public Interest Commissioner’s office encourages whistleblowers to come forward, Hutchison suspects the act’s limitations and the actions of the office itself—which hasn’t agreed with even one complaint of reprisal since 2013—means many would-be whistleblowers are afraid to do so. He wants the act overhauled, not merely tinkered with. “When illegal or corrupt acts are exposed, better policy choices, proper financial management and the penalizing or removal of bad actors ensues,” he said. “From a public policy perspective, it’s strange that Alberta has such poor protections on this front.”

Graham Thomson is a political analyst, member of the Legislature Press Gallery and former Edmonton Journal political columnist.

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