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PDF version of this Page | Word version of this page EventsLegal summaries of my case (from different perspectives) can be found in my statement of claim, and the government's side in their statement of defence.
As you read the narrative and documents below, please keep in mind the arguments Transport Canada executives have used to attack me and my report of wrongdoing:
I invite you to draw your own conclusions. ContentsJuly 2003 - November 2004
July 2003 - November 2004Regulatory WorkI joined the marine transportation security unit in mid-2003 as an analyst. Our team was tasked with developing the Marine Transportation Security Regulations (MTSR) within a year to mean national commitments to the International Maritime Organization. This was an exceptionally short period in which to do such work. The entire staff was required to work long hours to meet deadlines. The approach adopted was essentially to "crib" from the U.S. Maritime Transportation Security Act Regulations and the International Ship and Port Facility Security Code (ISPS Code). Ultimately, this was mostly resolved in favour of U.S. rules. This in turn, created gaps as the U.S. rules frequently referred to other U.S. legislation - legislation that was not the same in Canada.
ConsultationsTransport Canada conducted consultations with industry, union and government agencies prior to finalizing the regulations. Then Chief of Regulations, Joanne St-Onge, had a personal friendship with shipping industry lobbyist Captain Rejean Lanteigne. At the time, he was Vice President, Operations, at the Canadian Shipowners Association. Ms. St-Onge regularly accepted meals from Capt. Lanteigne and frequently consulted with him. No other organizations or individuals were granted this level of access to the regulatory process. Capt. Lanteigne appears to have continued his contacts with regulatory officials after his active status as a lobbyist expired in August 2005 (visit the website of the Office of the Commissioner of Lobbying of Canada to find Capt. Lanteigne's registration information). Besides the violation of the Values and Ethics Code for the Public Service this contact represented, I am concerned that Ms. St-Onge allowed Capt. Lanteigne to exert an undue influence on the development of the MTSR. Ms. St-Onge also accepted expensive meals from other industry stakeholders. I and other members of our unit were instructed to attend two of these meals in St. John's, Newfoundland, where the cost per diner exceeded $100. I reported this in my 2006 report of wrongdoing, but these allegations were never properly investigated, if indeed they were investigated at all. Based on this evidence, and the failure of management to investigate the matter, I believe that such acceptance of gifts is a common and accepted practice at Transport Canada. PromotionOn the basis of my experience as a naval officer, my education, my analytical skills and the high standard of work I produced for the unit, I was promoted to Chief, Marine Transportation Security Regulations by November 2004.Before my promotion, I was aware of a number of problems in the unit and in management but accepted the position for the challenges it posed and in the belief that I could have a positive impact on those problems. Managers at Transport Canada have criticised me for not bring my concerns forward earlier. I can only argue that I did not feel it was my role to do so at that point, and that it was not until I was in a management position that I became aware of both the depth and the entrenched nature of the problems. November 2004 - June 2005Development of Conflict with ManagementDuring this period, the regulatory unit was required to produce three major regulatory packages. These included the Marine Transportation Security Clearance Program (MTSCP), a system of fines called Administrative Monetary Penalties (AMPs), a set of special security measures for cruise ships and special security measures for the 2005 tall ships festival in Vancouver. This was an extraordinary amount of work for a staff of four. Nonetheless, we completed the work on time. Starting in January, I began attempting to address some management issues which were hindering the effectiveness of the unit. Now Director of Regulatory Affairs, Ms. St-Onge was having difficulty understanding or keeping up with the work, which made decision-making difficult or impossible. In addition, she was harassing some employees and overloading others. We discussed this three times in this period, each time resulting in a commitment to improve matters but no actual improvement taking place. During this period, Elisabeth Bertrand joined our section as Chief, Regulatory Issues. In order to help her integrate into the unit, I had my staff prepare briefing binders, held meetings with her to inform her of the work in progress, and invited her to my team meetings. Around April, Ms. Bertrand expressed her own concerns about the functioning of the unit. After two months, we took the matter to our staff in a meeting and proposed that Ms. Bertrand and I speak to the Ms. St-Onge. The team agreed that this would be a good approach.
When I discussed our concerns with Ms. St-Onge, she immediately became defensive and indicated that it was only me who had problems. At the time, I was not aware that Ms. Bertrand was acting as a kind of agent provocateur, and that she was representing me as stirring up problems in the unit.
This had the effect of poisoning my work relationship with Ms. St-Onge. As a result of this, it was agreed that Ms. Bertrand and I would speak to the Director General Marine Security, Gerry Frappier. We were concerned that such action would be unsuccessful in promoting change, however, as it was evident to a number of us that Mr. Frappier and Ms. St-Onge were at the very least good friends. Mr. Frappier and Ms. St-Onge, it should be noted, have repeatedly denied that this affected any decision making.
Work PlanningFrom May to June 2005, the Marine security Regulatory unit was engaged in a work planning exercise. During that planning phase, it became evident to me that, for no discernible reason, there would be no formal planning of work for the next few years. This was of concern to me as:
Regulatory ConcernsDue to what I see as poor planning, poor decision-making and a lack of will to enforce the regulations, two regulatory packages were not enacted in spring 2005. One was the MTSCP. This program met a great deal of resistance from unions, who argued that it was intended to screen out people with a criminal past, and not to reduce the threat of terrorism. Management yielded to union pressure, but was unable to reach a compromise due to union intransigence. The longshoreman's union in Vancouver still challenged the program when it was finally implemented a year later. This challenge was rejected by the Supreme Court in March 2010. This delay resulted in a much slower than planned implementation of the MTSCP, with much lower than expected volumes of clearance requests. Far more importantly, AMPs - the system of fines - was delayed along with the MTSCP. This resulted in an unnecessary delay in the implementation of an important enforcement tool, as the only other "stick" held by the departments was the ability to decline to renew a security certification. Thus, a marine facility could advertise itself as secure, but not be so. Indeed, Transport Canada appears to lack the regulatory authority to pull a certification, and has, in any event, never done so. This defies logic, as there is at least one instance that I am aware of where a facility thumbed its nose at Transport Canada regulations.
This and other gaps were brought to the attention of management in informal settings (such as our planning sessions), but no action was taken. June 2005 - September 2005In August 2005, Elisabeth Bertrand and I met with Mr. Frappier. We expressed our concerns regarding the state of leadership in the regulatory unit. Unknown to me at the time, Ms. Bertrand later returned to Mr. Frappier to disavow herself of any criticism.
Given the deteriorating work environment, I approached Jim Marriott, Director of Regulations in the Security and Emergency Preparedness directorate about a possible ttransfer. A "secondment" (i.e. temporary transfer) was arranged with a date for changeover set in early September 2005. After that meeting, I learned that Ms. St.Onge had gone immediately to Mr. Frappier and accused me of threatening behaviour. Mr. Frappier took her at her word and verbally counselled me several days later. I was very shaken by this accusation and the uncritical manner in which it had been received. I submitted my version of events to human resources personnel, but declined to act further. Later, I learned that she had used the same tactics on Saïd Nassif, Director of Marine Security Operations. He was also pushed out of the organization in 2007.
With respect to the leave dispute, I ultimately opted to abandon it as the effort required to succeed outweighed the benefits. September 2005 - January 2006Unwilling to let matters regarding management and still hopeful that senior management could be engaged to address the problems, Ms. Bertrand and I went to the Transport Canada Integrity Officer to pursue our concerns there. The Integrity Officer, Mr. Ted Cherrett, refused to investigate any of our concerns and ultimately referred matters back to Mr. Marc Grégoire (Assistant Deputy Minister Safety and Security) and Mr. Frappier. Mr. Frappier was by then implicated in our concerns about management and wrongdoing.
January 2006 - December 2006Further Attempts to Prompt ActionFor most of 2006 I worked on aviation security matters. I, along with others, continued to have concerns about the management of the Marine Security directorate. Knowing that I would eventually have to return - indeed, wanting to do so, but in a safe environment, I persisted in my efforts to have problems addressed. My first new opportunity arose when Mr. Frappier suddenly departed from his position as Director General, Marine Security in the spring of 2006. In May I raised my concerns with his replacement, Laureen Kinney (who had previously been Director of Marine Security Operations). Ms. Kinney refused to receive or investigate any of my concerns or complaints, and ordered me to cease contact with Marine Security personnel despite the fact that my transfer was temporary and that I would eventually be obliged to return to the unit.
In July 2006, Mr. Goudge, Mr. Allard and I approached our union about a possible group grievance. While we knew that this grievance would not address the management and regulatory problems we were concerned about, it was hoped that this would engage Transport Canada senior management in an effort to address the widespread problems in the unit. Initially, the Public Service Alliance of Canada was supportive. This changed in the fall of 2006, however, when the union began to indulge Transport Canada efforts to disrupt the grievance. One such tactic was the severing of a group grievance into individual grievances; another was the use of a "workplace health initiative" to delay investigation. The workplace health initiative, however, addressed different issues.
In addition, despite our strenuous objections, PSAC failed to appropriately intervene when it learned that Ms. Kinney would be hearing the grievance at the first level in 2007. Ms. Kinney was, in effect, her own judge. In November 2006, I learned that I had won a competition for a position at the Public Works and Government Services Canada (PWGSC). Concerns and Motivations Leading to my December 2006 Report of WrongdoingI have already described some of the concerns which I had about the management of the Marine Security directorate and the regulatory and enforcement regime. During my efforts to have these issues addressed, it became evident to me and others that the problems were worsening. Upon winning the competition for the position at PWGSC, I made the decision to prepare a report to the Office of the Auditor General of Canada (OAG). I felt compelled to do so at I felt that the risk of a security breach would grow over time, and wished to try one last time to have the issue addressed. On December 12, 2006, I submitted the report to the OAG and the Chair of the Standing Senate Committee on National Security and Defence (SCONSAD). I also provided it to the Public Service Integrity Officer (PSIO, predecessor to the Public Service Integrity Commissioner) and the Minister of Transport, Lawrence Cannon.
I hoped that I would be able to shock Transport Canada senior managers into action. To that point, I believed that the senior managers were unaware of the depth of the problems and would act if informed. I believed this because I knew that some people had attempted to raise issues before, but it had only been done piecemeal. I intended to wrap all the concerns into one document, make clear connections and outline potential consequences. It is important to note that I was not alone in my concerns. Several other highly qualified individuals agreed with my assessment. Their support for my report was either dismissed as coming from inexperienced subordinate staff or simply ignored altogether. One such individual was Allan McDougall, a former Transport Canada inspector, marine security expert and co-author of the industry recognized and seminal book Transportation Systems Security. He later indicated that he thought my report was "about 95% right". Another was Mr. Nassif, Director of Marine Security Operations. Both were pushed out of the department.
In addition, SCONSAD published a report in March 2007, which also expressed concern about aspects of marine transportation security oversight.
I started work at PWGSC on December 13. December 2006 - May 2008Transport Canada Response and ReprisalUpon receipt of my report of wrongdoing, the following happened:
In addition, I was informed by my union representative that Mr. Grégoire had instructed human resources personnel "to have no mercy" on me. I have been unable to obtain a copy of this correspondence despite a number of requests. I was strongly shaken by the strength of the response, as I had believed that the misconduct and mismanagement was isolated. Threatening letters were sent weekly, or more often, demanding or threatening various actions. I was forced to take sick leave to recover. Briefly, I considered retracting my report. I decided against this as I remained confident that I was accurate in my descriptions and that an independent investigation would vindicate me. Deloitte and Touche InvestigationA rush effort was made to hire Deloitte and Touche to conduct an investigation into my report. The project's scope was very limited and specifically excluded any investigation into my allegations of misuses of public funds, acceptance of gifts from industry or the soundness of the marine security framework. That is to say, it mainly focussed on my conduct and that of individuals perceived to have helped me. I cooperated to the best of my ability in the investigation. It was completed in April 2008, although I did not receive a copy (heavily redacted) until early 2010.
Briefly, Deloitte and Touche conducted a superficial investigation which focussed primarily on my actions. The methodology included 17 interviewees. The evidence of implicated officials was given more weight than others. There was also a thorough examination of my e-mails. Nobody else's actions were subjected to nearly the same scrutiny as mine. Read more on my rebuttals page. Harassment InvestigationOn December 19, 2006, a meeting was held with senior managers with the intent of soliciting harassment complaints as part of the overall reprisal strategy.
As an aside, the reader will notice that Ms. Kinney, implicated in the report, is coordinating this action, and that she sets out the objectives of the department's response:
Her December 18 analysis also sets out attacking my credibility as an objective. The complaint was approved to go ahead by Mr. Grégoire and a harassment investigator selected by the beginning of March 2007. This is a startling contrast to the treatment given to the group grievance and harassment complaints put forward by me and my team members. The contractor selected was Lucie A. Savage. At no point have I ever seen a full and coherent list of allegations against me. Rather, the complaints were disjointed, focussed on feelings and not whether or not I was right in my report, and in many places were redacted. Two individuals filing the complaints were only peripherally implicated by my report of wrongdoing. I endeavoured to cooperate in this investigation despite misgivings. I met with Ms. Savage several times. She was hostile from the outset, clearly taking a biased view. In addition, she refused provide me with questions prior meeting with me and my labour representative. As a result of this and other concerns, my union representative advised me to cease cooperating. While disputing my concerns, Transport Canada removed Ms. Savage from the investigation. A new investigator was in place by mid-2008. By that time, however, I was on long-term disability. The investigation proceeded without my input until July 2009. By the time I was fit to participate in September, I was informed that a preliminary report had been completed. For my input, I was given three weeks to rebut 720+ pages of testimony. I could not do so, although I did summarize some concerns.
Of particular note is the fact that testimony of people who supported me and disputed the allegations was deliberately omitted. Accusations of Breach of Policy on Government SecurityOn December 21, 2006, Mr. Grégoire informed my new supervisor, Ms. Walker, that I had mishandled my report or wrongdoing. He asserted that it should have been classified "secret". Such mishandling of information would have constituted a breach of the Policy on Government Security and could have led to the loss of my security clearance. This is a common technique used against whistleblowers. On May 8, Mr. Grégoire retracted the assertion that I had misclassified (and therefore mishandled) my report of wrongdoing. He did not apologize or remove any of the restrictions which had been placed on me.
Interference in Employees Group Grievance and Harassment AllegationsMr. Grégoire, Mr. Frappier and Ms. Kinney repeatedly interfered with the group grievance advanced by Claude Allard, Shawn Goudge and I in July 2006. This was done in several steps:
Mr. Allard and Mr. Goudge declined to attend as they were concerned that the process would not be fair and were worried about reprisals. The grievance was finally dismissed in July, 2008.
Note that one key reason for denying the grievance is time limitations. The delays, however, occurred because Transport Canada itself put the complaints on hold for the workplace health initiative. Legal ActionIn September 2007, after warning Transport Canada officials to cease and desist reprisals, I initiated a legal action against Mr. Grégoire, Ms. Kinney, Mr. Frappier and Ms. St-Onge.
Although the action called for millions in damages, this is "boilerplate" - that is, standard. All I really wanted was for the information to be brought to the public's attention and to force Transport Canada to cease its reprisals. I had no expecttion of receiving a great deal of money. Mr. Marriott and Jean Barrette were originally considered as part of the lawsuit as they appeared to be assisting Transport Canada senior management, but were ultimately excluded as they were not seen to be central to the "conspiracy to injure". Mr. Ranger, Deputy Minister likely approved the reprisals - but was not named due to an absence of incriminating documentation. Nonetheless, I consider him responsible for both the wrongdoing, failing to investigate the wrongdoing and allowing the reprisal to occur. Transport Canada officials, in their statement of defence, characterized me as a malcontent and not a whistleblower, but a person pursuing a personal grievance. They also put forward a motion to strike my lawsuit based on section 236 of the Public Servants Labour Relations Act. This section was put in place in 2006, after several high-profile whistleblower lawsuits. Transport Canada argued that this clause made it impossible for me to sue anyone in the public service for any reason.
May 2008 - May 2010My Father's DeathIn May, 2003, my father passed away after a lengthy battle with cancer. This added to my emotional and physical exhaustion. Continued Legal ActionAlso in May 2008, I entered into mediation with Transport Canada. This process dragged on for about a month and a half. It ultimately failed. I cannot discuss the terms negotiated due to a confidentiality agreement, but I can say that all I have ever wanted was for the problems to be addressed in some way and for me to be able to carry on with my life without stigma or further damage. The defence's motion to strike the case was first heard on February 10, 2009. My counsel put forward a strong case that precedents should be followed - precedents which set whistleblowers apart as they cannot expect fair treatment through normal grievance procedures. Justice Jean Forget rejected my lawyer's position.
I could not accept this decision as Justice Forget, without seeing any evidence (none is presented at this kind of motion hearing) accepted Transport Canada's position that I was simply advancing personal issues and should accordingly use grievance procedures.
My appeal was heard on October 20, 2009, by Justices Doherty (presiding), Gillese and Epstein. Although they agreed that my report was in fact a whistleblowing report, and skewered the lawyer for Transport Canada for representing it as purely personal, only one seemed to understand the overarching nature of whistleblower reprisals and the inability of typical harassment and grievance procedures to address such reprisals. Accordingly, my appeal was denied.
This decision enshrines section 236 of the PSLRA as the ultimate shield for public servants accused of reprisal or other civil misconduct against another public servant. That is to say, nothing is litigable. Given that the PSIC is not investigating complaints brought forward to her office, this leaves federal government whistleblowers completely without effective protection. It also left Transport Canada executives free of any consequences for their misconduct and reprisals, and me without any recourse. The decision required me to pay government costs in the order of approximately $8,200. Transport Canada managers insisted that I also pay approximately $100 in interest. My lawyer protested, noting that in such cases the government often forgives costs and that charging interest would be "rubbing salt in the wound". He also observed that I could make the issue a public one.
The department relented and forgave me the interest charges. New Work Environment PoisonedDue to deterioration in health resulting from attempts to deal with my situation and the reprisals, I was on leave for the first half of 2008. When I attempted to return to work, I requested to be moved to a different building in order that I would no longer encounter my antagonists on a daily basis. I was informed by my supervisor, Ms. Walker, that doing so would require that special measures be taken and warnings made to prevent me accessing work being conducted for Transport Canada in that location. I found this differential treatment offensive and opted to stay where I was. I did, however, wish to learn what projects were being conducted. Rather than search surreptitiously through files, which I felt would have been unethical, I filed an Access to Information Act request. Upon receiving it, and contrary to the law, Ms. Walker confronted me in my office and informed me that I had been identified as the originator of the request. She also made a threat: that she would cooperate with Transport Canada in its reprisals against me if I did not retract it. When I declined to do so several days later, she renewed her threats and made an effort to intimidate me. As a result, I again went on sick leave.
I do not begrudge Ms. Walker's reactions too strongly as she is a typical civil servant and was acting under orders. It did not occur to her to question the instruction (which was illegal) or to examine the principles upon which her anger was founded. The incident also illustrates well how senior Transport Canada bureaucrats could affect my new work environment. A subsequent investigation by the Office of the Information Commissioner (OIC) resulted in findings which stopped short of misconduct in this instance.
Ms. Walker has never apologized for her actions or e-mail. Rather, I am assume that I am expected to pretend that the incident never happened and accept responsibility for what happened. Renewed Efforts to Have Issues AddressedOn May 7, 2010, having failed to obtain relief or redress via all other avenues, I wrote a letter to Yaprak Baltacıoğlu, current Deputy Minister of Transport Canada, expressing my concern on the lack of action on the issues I raised and informing her of the nature and effects of the reprisals made against me.
I received no response to this letter, so after a week, I sent an e-mail to Ms. Baltacıoğlu requesting confirmation that she had received the e-mail and some assurance that the silence to date was not an indication of a renewed reprisal. She left the response to he executive assistant, who indicated that my letter had been received and that “an appropriate reply will be provided as soon as possible.” I responded with the following e-mail.
A couple of hours later, Ms. Linda Brouillette, Director General of Human Resources at Transport Canada, called my union to state that she was concerned about the language in my e-mail, and the references to suicide. She indicated that she was doing her “due diligence” (so that she wouldn’t get into trouble if something bad happened). It appears that even when doing the right thing, they feel comfortable admitting that it is out of self-interest. |
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