From Case To Practice: Do Respondents Have A Right To Know The Identity Of A Whistleblower/Witness?

The Case¹

In 2021, concerns about the leadership of Mary Lynne Campbell, an Alberta public school division superintendent, were raised through the submission of a complaint under Alberta’s whistleblower protection legislation (PIDA²). The complaint alleged bullying, harassment, and intimidation in the workplace. Alberta’s Public Interest Commissioner investigated the concerns and initially spoke to 34 witnesses who described a workplace culture characterized by fear, with many reporting being afraid to express their views or raise concerns because of how they might be treated.

Throughout the investigation, the identities of whistleblowers and witnesses were kept confidential. While Ms. Campbell acknowledged that the anonymity of sources is an important part of a whistleblowing program, she noted that there were various allegations made by dozens of anonymous individuals about her specific interactions with these people. She argued that it was impossible for her to respond without disclosure of the identity of the witnesses, dates and details of the interactions. She maintained that withholding witness identities prevented her from fully defending herself.

The Commissioner disagreed. While witness names were withheld, Ms. Campbell received detailed information about the allegations and incidents being investigated. The Commissioner argued that this gave her enough information to understand the case against her and provide a meaningful response. There were even some allegations where the Commissioner did not believe that Ms. Campbell has enough information to meaningfully respond, and he declined to consider those allegations in making his decision.

This dispute eventually reached the courts, with the Alberta Court of Appeal recently deciding that the process was fair in the circumstances. In doing so, the Court considered the following factors, taken from a 1999 Supreme Court of Canada case, Baker v. Canada³:

1. The nature of the statutory scheme

When deciding whether a procedure is fair, courts must consider the broader context within which the decision was made. In this case, the purpose of investigations under PIDA was to address public wrongdoing and promote public confidence. The court noted that PIDA’s focus was “wrongdoing” above “wrongdoers,” and that a central purpose of PIDA was the protection of employees who made disclosures. It was held that this statutory context tended to support a procedure that maintained whistleblower and witness confidentiality to the extent that this could be done while ensuring respondents had a meaningful opportunity to respond.

2. The nature of the decision being made and process followed in making it

The more that the process resembles judicial decision-making, the more that a court-like procedure is required to achieve the appropriate level of procedural fairness. The Court held that the Commissioner’s report in this case did not resemble a judicial process and was not akin to a decision involving professional discipline (here, no recommendations were made, but even if they had been, they were not binding; the Commissioner had no power to impose sanctions). It was held that a court-like procedure was not required in this case.

3. The importance of the decision to the individual(s) affected

The more important the decision is to the life of the person affected, and the greater its impact on that person, the more stringent the procedural protections that will be mandated.⁴ The Court noted that a finding of wrongdoing would of course be felt by a person who had devoted decades to a profession. However, before the report was issued, Ms. Campbell had provided notice of her retirement which meant that, even though PIDA contemplated that someone who committed wrongdoing could be subject to disciplinary action, this was not a real risk in her case. The Court concluded, therefore that this investigation did not have an “immediate and profound” impact on Ms. Campbell’s life.

4. The legitimate expectations of the person challenging the decision

If a decision-maker has made representations about the procedure they will follow, or if they have consistently adhered to a certain procedural practice in the past, the procedural fairness owed to the affected person might be broader than it would otherwise. The representations or past-practice might give rise to legitimate expectations on their part. Ms. Campbell made no argument in this case based on this factor.

5. The choices of procedure made by the decision-maker

Courts should give important weight to a decision-maker’s choice of procedure, particularly when the legislation has given them the right to ability to choose their own procedure, or when they have “expertise in determining what procedures are appropriate in the circumstances.”⁵ The Court held that the Commissioner had the authority to choose not to identify the whistleblower and witnesses and the expertise to make those choices.

In the context of a consideration of the above factors, the Court reviewed in detail the Commissioner’s decision not to disclose the names of the whistleblower and the witnesses and his reasoning for declining to do so. They also reviewed how the Commissioner sought to balance this decision with attempting to provide the respondent with a meaningful opportunity to respond to the allegations through sharing summaries, and deciding not to consider allegations if the respondent could not provide a meaningful response. Ultimately, it was held that the Commissioner’s process was fair.

What does this mean for the practice…

Campbell does not create a blanket rule that whistleblower/witness identities should never be disclosed. A fundamental aspect of procedural fairness is that a respondent knows the case to be made against them and is given the opportunity to respond. However, as the Court specifically noted in this case:

In some contexts, it may not be necessary to disclose all the details of the allegations, so long as the affected party “was actually made aware of the substance of the allegations to be able to respond in a meaningful way.”⁶

There will absolutely be cases where identifying information must be provided to the respondent in order to ensure they have a meaningful opportunity to respond to allegations against them.⁷ However, as the Court in Campbell also noted:

It may be true that knowing identities would have enhanced [Ms. Campbell’s] ability to respond, but administrative procedures need not be optimal to be fair.⁸

When deciding whether to identify a whistleblower/witness to a respondent, investigators and employers should consider:

• Why anonymity is being requested;
• Whether disclosure could expose the individual to retaliation, intimidation, or other workplace harm;
• Whether the respondent had any legitimate reason to expect that they would be advised of the identity of the whistleblower/witness;
• Whether the respondent has enough information to otherwise understand and respond to the allegations;
• Whether the person’s credibility is central to the issues being investigated (as the respondent may have relevant information about credibility if they know the person’s identity);
• Whether withholding the person’s identity would prevent the respondent from meaningfully answering the case against them; and
• What impact the outcome of the investigation might have on the life of the respondent.

As Campbell makes clear, investigators must carefully balance the above interests and assess what fairness requires in the specific circumstances of each case. In any given case, an organization may decide that protecting the anonymity of a whistleblower/witness is paramount, even if it results in a risk that an investigation will be seen to be procedurally unfair.

Footnotes

1. Campbell v Alberta (Public Interest Commissioner), 2026 ABCA 184 (CanLII)

2. Public Interest Disclosure (Whistleblower Protection) Act, SA 2012, c. P-39.5.

3. Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817 at paras 23-28

4. Baker at para 25.

5. Baker at para 27.

6. Campbell at para 85.

7. One such case is discussed in Campbell at paras 93-97: Lycka v Alberta (Information and Privacy Commissioner), 2009 ABQB 245.

8. Para 98.