Some regulators have whistleblower policies. Most commonly, they are for internal use as a safeguard to ensure that the regulator and its leadership are conducting business appropriately. Less frequently, they are a means of learning about registrant misconduct that would otherwise not come to the regulator’s attention. A critical issue to the success of either such policy is whether those who come forward (or are approached for statements) can maintain their anonymity.
In Campbell v Alberta (Public Interest Commissioner), 2026 ABCA 184 (CanLII), the answer is: perhaps, maybe, sometimes. In that case, a whistleblower report asserted that the management style of the respondent, the superintendent of a school division near Edmonton, involved bullying, harassment and intimidation. The whistleblower regime created by legislation was intended to bring to the attention of public entities, for possible corrective measures, valid concerns about “wrongdoing” that compromised the effectiveness of their management or created risks to life, health, safety or the environment. Under the scheme, a whistleblower reported a concern to the Public Interest Commissioner who protected their identity, subject to the principles of procedural fairness. In this case, the Commissioner did so by providing a summary of the investigative findings without disclosing the identities of the reporter or witnesses. To achieve procedural fairness, the following types of thematic disclosures were made to the respondent:
Under the heading, “Investigative Findings”, the investigator summarized and aggregated various aspects of the interview evidence, including evidence related to the culture of the organization (e.g., “Thirty-one witnesses… expressed the culture of the Division is one of fear”), the employee turnover rate (e.g., “Seventy-two percent of the witnesses… described the employee turnover rate at that time [as] ‘extremely high,’ ‘tremendous,’ and ‘significant’”), employee autonomy (e.g., “Nineteen witnesses described [the respondent’s] management style as ‘micromanagement,’ with some verbalizing she is ‘militaristic,’ and ‘has to control’ and ‘have her hands in everything’”), workplace communication (e.g., “Twenty-four percent… reported that all communications must first go through” the respondent), employee reprimands (e.g., one witness stated the practice of issuing letters of reprimand was “frequent, overt, and used to intimidate employees”), the respondent’s conduct (e.g., “Twenty employees expressed concern that [the respondent] utilizes various tactics of intimidation to bully individuals or assert control over employees”), work demands (e.g., “Sixteen witnesses raised concerns about the work demands placed on employees by” the respondent), and the effects of the respondent’s conduct on employees (e.g., “Thirteen witnesses reported that [the respondent’s] behaviours have led to employees becoming afraid of asking questions and voicing opinions”). Evidence regarding specific events relayed by the witnesses was also summarized.
The Court concluded that procedural fairness did not require the Commissioner to disclose the reporter or witness identities to the respondent because:
- The nature of the statutory scheme emphasized systemic improvements over sanctioning individual wrongdoers.
- The Commissioner’s decision was not adjudicative in nature but instead included non-binding recommendations to the relevant public entity.
- While the Commissioner’s report “would be felt by the person who had devoted decades to the profession”, it did not have “more concrete consequences” for them. This was especially the case here, as the respondent retired before the report was released.
- There was nothing in the whistleblower scheme or the Commissioner’s conduct that would create a legitimate expectation that the respondent would receive disclosure of the identities.
- The Commissioner’s choice not to disclose the identities was explained and fit within the procedural options specified in the legislation.
- Other court decisions mandating disclosure of identities during an investigation could be distinguished on their facts.
The Court was “satisfied the ‘genericized’ disclosure achieved fairness in a way that was ‘appropriate to the decision being made and its statutory, institutional, and social context….’”
It is worth noting that when the respondent brought her application for judicial review, she was given, over the objection of the Commissioner, an unredacted record of the investigation which included the identities of the person making the report and of the witnesses, based on the open court principle. Thus, the anonymity of the whistleblower and witnesses was not permanent.
This decision suggests that a regulator could likely develop an internal whistleblower policy to enhance its operations that offers significant, but not absolute, anonymity to reporters and witnesses.
On the other hand, the Court explicitly rejected the proposition that this process was analogous to a discipline investigation for professional misconduct, suggesting that the whistleblower level of protection might not apply to that context. However, the Court did not comment on whether the “informant’s privilege” might apply in disciplinary matters.
