P-33.01 - Act respecting protection against reprisals related to the disclosure of wrongdoings

Updated to 30 May 2024

This document has official status.

not in force

chapter P-33.01

Act respecting protection against reprisals related to the disclosure of wrongdoings

CHAPTER I INTRODUCTORY PROVISIONS

2024, c. 21, s. 1.

1. For the purposes of this Act,

(1)  “disclosure” means

(a)  the communication of information in accordance with section 6 or the first paragraph of section 7 of the Act to facilitate the disclosure of wrongdoings relating to public bodies (chapter D-11.1);

(b)  the communication, by a person to the public body within which that person exercises a function, of information which could show that a wrongdoing has been committed or is about to be committed in relation to the public body; or

(c)  the communication, by a person to any person, partnership, entity or group within which the person exercises a function, of information which could show that a wrongdoing has been committed or is about to be committed in relation to a public body and that the wrongdoing concerns that person, partnership, entity or group;

(2)  “public body” has the meaning assigned by section 2 of the Act to facilitate the disclosure of wrongdoings relating to public bodies; and

(3)  “wrongdoing” has the meaning assigned by section 4 of that Act.

2024, c. 21, s. 1.

2. This Act is binding on the State.

2024, c. 21, s. 1.

CHAPTER II PROTECTION AGAINST REPRISALS

2024, c. 21, s. 1.

DIVISION I PROHIBITIONS

2024, c. 21, s. 1.

3. It is prohibited to take a reprisal against a person on any of the following grounds:

(1)  the person has made a disclosure;

(2)  the person has cooperated in an audit or an investigation conducted for the purposes of this Act or the Act to facilitate the disclosure of wrongdoings relating to public bodies (chapter D-11.1);

(3)  the person has exercised a right conferred on them by this Act;

(4)  the person has advised another person to make a disclosure or exercise a right conferred on the latter by this Act, has encouraged the latter to do so or has informed the latter of those possibilities; or

(5)  the person has a relationship, in particular a personal or family relationship, with another person who has made a disclosure or exercised a right conferred on the latter by this Act.

It is also prohibited to threaten to take a reprisal against a person so that the person will abstain from making a disclosure, cooperating in an audit or an investigation referred to in the first paragraph, or exercising a right conferred on them by this Act.

2024, c. 21, s. 1.

4. Reprisals within the meaning of section 3 include

(1)  transferring, suspending, demoting or dismissing a person or ending a person’s training, imposing on them any other disciplinary measure or measure that adversely affects their employment, conditions of employment or training, including discriminatory measures, or imposing on them any other sanction; and

(2)  if the person referred to in that section is the parent of a child to whom childcare services are provided by a public body referred to in paragraph 9 of section 2 of the Act to facilitate the disclosure of wrongdoings relating to public bodies (chapter D-11.1), depriving that person or that person’s child of any right, subjecting them to differential treatment or suspending or expelling that person’s child.

For the purposes of this Act,

(1)  “training” has the meaning assigned by section 1 of the Act to ensure the protection of trainees in the workplace (chapter P-39.3); and

(2)  the person who has de facto custody of a child is considered to be a parent of the child, except if the person having parental authority objects.

2024, c. 21, s. 1.

DIVISION II COMPLAINTS

2024, c. 21, s. 1.

5. A person who believes they have been the victim of a reprisal or threats of reprisal prohibited under section 3 may file a complaint with the Public Protector within 90 days of becoming aware of the reprisal or threats.

The complaint may be filed, on behalf of and on the written consent of the complainant, by any person, body or association.

The Public Protector may, on reasonable grounds, relieve a person from failure to act within the time prescribed in the first paragraph.

2024, c. 21, s. 1.

6. The Public Protector may refuse to process a complaint that is frivolous, vexatious or made in bad faith.

2024, c. 21, s. 1.

7. If the Public Protector refuses to process a complaint, the Public Protector notifies the complainant of that decision and of the grounds on which it is based.

If the complaint is related to employment or training, the decision must state that it is possible for the complainant to file the complaint with the Administrative Labour Tribunal within 90 days following receipt of the decision.

2024, c. 21, s. 1.

DIVISION III MEDIATION

2024, c. 21, s. 1.

8. The Public Protector may, with the agreement of the parties, appoint a mediator to attempt to settle the complaint to their satisfaction.

2024, c. 21, s. 1.

9. Unless the parties agree otherwise, the mediation process may not continue for more than 30 days after the date on which the mediator is appointed.

2024, c. 21, s. 1.

10. Unless the parties to the mediation consent to it, nothing that is said or written in the course of a mediation session may be admitted as evidence before a court of justice or before a person or body of the administrative branch exercising adjudicative functions.

Any verbal or written information collected by the mediator must remain confidential. No mediator may be compelled to disclose anything that has been revealed to them or that has come to their knowledge in the exercise of their functions, or to produce any document made or obtained in the exercise of their functions, before a court or before a person or body exercising adjudicative functions, except in penal matters, where the court considers that such proof is necessary for a full and complete defence.

Despite section 9 of the Act respecting Access to documents held by public bodies and the Protection of personal information (chapter A-2.1), no person has a right of access to any such document.

2024, c. 21, s. 1.

DIVISION IV RECOURSE

2024, c. 21, s. 1.

§ 1 . — Roles of the Public Protector

2024, c. 21, s. 1.

11. If the parties refuse to enter into mediation or if no settlement is reached at the end of the mediation process, the Public Protector may represent the complainant for the exercise of any appropriate recourse before a court, including a recourse before the Administrative Labour Tribunal, in order that the subject-matter of the complaint be decided.

2024, c. 21, s. 1.

12. On the consent of the complainant, the Public Protector refers to the Administrative Labour Tribunal, without delay, a complaint related to employment or training if the parties refuse to enter into mediation or if no settlement is reached at the end of the mediation process.

2024, c. 21, s. 1.

§ 2 . — Recourse before the Administrative Labour Tribunal

2024, c. 21, s. 1.

13. This subdivision applies to the following persons:

(1)  an employee within the meaning of subparagraph 10 of the first paragraph of section 1 of the Act respecting labour standards (chapter N-1.1) in accordance with section 2 of that Act; and

(2)  a trainee within the meaning of section 1 of the Act to ensure the protection of trainees in the workplace (chapter P-39.3) in accordance with section 2 of that Act.

2024, c. 21, s. 1.

14. A person who believes they have been the victim of a reprisal or threats of reprisal prohibited under section 3 on the part of their employer or of an agent of their employer or, in the case of a trainee, on the part of an educational institution or professional order or of an agent of the institution or order may file a complaint with the Administrative Labour Tribunal within 90 days after the latest of the following events:

(1)  the awareness of the reprisal or threats of reprisal; or

(2)  the receipt of a Public Protector’s decision to refuse to process the complaint.

The complaint may be filed, on behalf of and on the written consent of the complainant, by any person, body or association.

2024, c. 21, s. 1.

15. If a person makes a disclosure, cooperates in an audit or an investigation referred to in the first paragraph of section 3 or exercises a right conferred on them by this Act and alleges that they are the victim of reprisals referred to in subparagraph 1 of the first paragraph of section 4, there is a simple presumption in their favour that the sanction was imposed on them or the measure was taken against them because of that disclosure, cooperation or exercise of a right. The burden of proving that there was good and sufficient reason to resort to the sanction or measure lies on the author of the sanction or measure.

2024, c. 21, s. 1.

16. The president of the Administrative Labour Tribunal determines that a recourse exercised under this Act and relating to an alleged dismissal is to be heard and decided on an urgent basis if the president is of the opinion that the recourse appears, on its face, to be well-founded.

2024, c. 21, s. 1.

17. The provisions of the Labour Code (chapter C-27) and the Act to establish the Administrative Labour Tribunal (chapter T-15.1) that are applicable to a recourse relating to the exercise by an employee of a right arising from that Code apply, with the necessary modifications, to a recourse before the Administrative Labour Tribunal provided for in this Act.

In addition to the orders it may make under those provisions, the Administrative Labour Tribunal may make any other order it considers fair and reasonable, taking into account all the circumstances of the matter, such as

(1)  order the employer to pay the employee an indemnity for loss of employment; or

(2)  order financing for the psychological support needed by the employee or trainee for a reasonable period of time it determines.

The Administrative Labour Tribunal may not, however, order the reinstatement of a domestic or a person whose exclusive duty is to take care of or provide care to a child or to a sick, handicapped or aged person in the employer’s dwelling.

2024, c. 21, s. 1.

DIVISION V RECOMMENDATIONS

2024, c. 21, s. 1.

18. If the parties refuse to enter into mediation or if no settlement is reached at the end of mediation, the Public Protector, with the agreement of the complainant, may conduct an audit or an investigation to determine if the complaint is well-founded and make the recommendations the Public Protector considers appropriate,

(1)  in the case where the public body concerned is referred to in paragraph 9 of section 2 of the Act to facilitate the disclosure of wrongdoings relating to public bodies (chapter D-11.1), to the Minister of Families and, if warranted by the circumstances, to the board of directors of that public body or to the natural person who is the holder of a day care centre permit;

(2)  in the case where the public body concerned is referred to in paragraph 9.1 of that section, to the highest ranking administrative official within that public body or, if warranted by the circumstances, to the Minister of Municipal Affairs, Regions and Land Occupancy, and, if warranted by the circumstances, to the board or council of the public body or to any local municipality having ties with the public body if the public body is not a local municipality; or

(3)  in any other case, to the highest ranking administrative official within the public body concerned or, if warranted by the circumstances, to the minister responsible for that public body.

However, the Public Protector may not conduct an audit or an investigation or make recommendations if the complainant exercises or has exercised a recourse before the Administrative Labour Tribunal under this Act or a civil recourse pertaining to alleged reprisals or threats of reprisal prohibited under this Act. If the complainant exercises such a recourse after an audit or an investigation has started, the Public Protector must end the audit or the investigation.

For the purposes of this Act, the highest ranking administrative official is the official responsible for the day-to-day management of the public body, such as the deputy minister, the chair or the director general. However, the highest ranking administrative official is

(1)  in the case of a public body referred to in paragraph 5 of section 2 of the Act to facilitate the disclosure of wrongdoings relating to public bodies, the board of directors or, in the case of a school board, the council of commissioners;

In force: 2024-12-01

(2)  in the case of an institution referred to in Schedule II to the Act respecting the governance of the health and social services system (chapter G-1.021), the president and chief executive officer of Santé Québec.

2024, c. 21, s. 1.

19. If, after making recommendations, the Public Protector considers that the public body has failed to take any satisfactory measure within a reasonable time, the Public Protector must so inform the minister responsible for that body in writing. If the Public Protector considers it expedient, the Public Protector may relate the case to the National Assembly in a special report or in the activity report referred to in section 28 of the Public Protector Act (chapter P-32).

2024, c. 21, s. 1.

CHAPTER III SANCTIONS

2024, c. 21, s. 1.

DIVISION I DISCIPLINARY SANCTIONS

2024, c. 21, s. 1.

20. The fact that an employee takes a reprisal or makes threats of reprisal prohibited under section 3 or seeks to identify a person on the ground that the person made a disclosure or cooperated in an audit or an investigation referred to in the first paragraph of that section constitutes a failure that may give rise to the imposition, by the employer, of a disciplinary sanction, up to and including dismissal.

2024, c. 21, s. 1.

DIVISION II PENAL SANCTIONS

2024, c. 21, s. 1.

21. Anyone who contravenes the provisions of section 3 is liable to a fine of $5,000 to $30,000 in the case of a natural person and $15,000 to $250,000 in all other cases.

2024, c. 21, s. 1.

22. Anyone who hinders or attempts to hinder the Public Protector, refuses to provide information or a document they are required to submit or refuses to make such information or such a document available, or conceals or destroys any document relevant to an audit or an investigation is liable to a fine of $5,000 to $30,000 in the case of a natural person and $15,000 to $100,000 in all other cases.

2024, c. 21, s. 1.

23. Anyone, including a director or officer of a legal person or of an employer, who, by an act or omission, helps a person to commit an offence under this Act or who, by encouragement, advice or consent or by an authorization or order, induces another person to commit such an offence is considered to have committed the same offence.

2024, c. 21, s. 1.

24. For a subsequent offence, the minimum and maximum fines prescribed in this Act are doubled.

2024, c. 21, s. 1.

25. Penal proceedings for an offence under a provision of this Act are prescribed three years from the date on which the prosecutor became aware of the commission of the offence. However, no proceedings may be instituted if more than seven years have elapsed since the date of the commission of the offence.

2024, c. 21, s. 1.

CHAPTER IV VARIOUS AND FINAL PROVISIONS

2024, c. 21, s. 1.

26. The Public Protector must inform the public about the protection against reprisals provided for in this Act.

2024, c. 21, s. 1.

27. Sections 11 and 11.1, the first and second paragraphs of section 13, sections 14, 14.1, 17.0.1 and 26.2 to 29, the first paragraph of section 29.1 and section 32 of the Act to facilitate the disclosure of wrongdoings relating to public bodies (chapter D-11.1) apply to the Public Protector, with the necessary modifications, in the framework of the functions the Public Protector exercises under this Act.

2024, c. 21, s. 1.

28. This Act applies to the National Assembly to the extent and on the conditions determined by regulation of the Office of the National Assembly.

2024, c. 21, s. 1.

29. Once a year, the Deputy Public Protector for Public Integrity, appointed under section 4 of the Public Protector Act (chapter P-32), prepares a report stating

(1)  the number of complaints received, broken down according to the class of entity to which the complaints are related;

(2)  the number of mediation processes held;

(3)  the number of cases where a settlement was reached at the end of a mediation process;

(4)  the number of cases where the Public Protector represents a complainant for the exercise of a recourse;

(5)  the number of settlements and the number of discontinuances in connection with those recourses;

(6)  the number of cases where the Public Protector made recommendations in accordance with section 17 of this Act; and

(7)  the recommendations the Deputy Public Protector for Public Integrity considers appropriate.

The Public Protector includes the report in the Public Protector’s activity report.

2024, c. 21, s. 1.

30. The complaint of a person who believes they have been the victim of a reprisal or threats of reprisal prohibited under section 3 on the part of the Public Protector is processed by the Ethics Commissioner in compliance with sections 1 to 18, 22, 27 and 29, with the necessary modifications.

2024, c. 21, s. 1.

31. The Minister who is Chair of the Conseil du trésor is responsible for the administration of this Act.

2024, c. 21, s. 1.