Exceptions

As an Organizational Head, section 5 of The Public Interest Disclosure Act (PIDA) requires you to appoint a senior official as the designated officer to receive and deal with disclosures from public servants about the organization and section 6 requires you to establish procedures to manage disclosures. In some cases you may believe that it is impractical to carry out these duties.  This would typically occur if your organization is of a very small size or does not directly employ public servants.  In these situations section 7 allows for Exceptions.  Section 7(1) reads:

7(1)   Sections 5 and 6 do not apply to a government institution if the permanent head determines that it is not practical to apply those sections to the government institution given the size of the government institution for which the permanent head is responsible.

Prior to making this determination, however, section 7(2) stipulates that the Organizational Head must consult with the Commissioner.  Section 7(2) reads:

7(2)   Before making a determination pursuant to subsection (1), the permanent head shall consult with the Commissioner.

The Commissioner does not make the final determination whether or not an organization should consider itself as an exception as defined under PIDA. That is the decision of the Organizational Head.  PIDA does require that the Organizational Head consult with the Commissioner who will then provide an opinion.  The Commissioner will consider every exception on a case-by-case basis.  When forming the opinion the Commissioner looks at several factors, some of which include: 

  • The size of the government organization,
  • The number of public servants employed by the government organization, 
  • The role and mandate of the government organization; and
  • Whether or not the exception would impact the larger public interest.

If, after consulting with the Commissioner, the organizational head determines that sections 5 and 6 should not apply to his or her organization then, according to section 6 of The Public Interest Disclosure Regulations, all potential disclosures must be referred directly to the Commissioner, who will manage them according to the Commissioner’s procedures.

It is important to remember that an exception under section 7 does not mean that PIDA does not apply to the organization; it only means that sections 5 and 6 of PIDA do not apply.

If you believe that your organization should not follow sections 5 and 6 of PIDA, you may begin the process of consulting the Commissioner by writing to outline the reasons, with reference to subsection 7(1) of PIDA, why you believe your organization should be an exception.

If you have questions about exceptions or consultations, please contact us.

A list of excepted organizations is available here.

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