ARCHIVED – Confidential Disclosure (Whistleblower) Procedure

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Table of Contents

1.0 Message from National Energy Board Chief Executive Officer

Among the top priorities for the National Energy Board (NEB) is its obligation to protect the safety of workers, the public, and the environment. The NEB works closely with regulated companies to promote compliance with the requirements established in the National Energy Board Act and its Regulations.  Fostering an environment of regulatory compliance in the workplace is in the best business interests of regulated companies and the Canadian public. Most companies work very hard to achieve and maintain regulatory compliance.

Employees of regulated companies play an important role in this compliance regime. They work on the front lines and have the best view of what happens in the workplace. Employees should inform their employers when the company’s business activities appear to conflict with its regulatory and legal obligations. Most of the time the company responds quickly and decisively to fix the problem. Sometimes however, an employee’s notification may not result in a remedy. In such cases, employees of regulated companies, and others, may feel that they need to report such information to the regulator.

Whistleblower programs have proven to be a valuable tool for organizations to receive reports of asset misappropriation, workplace misconduct, and other wrongdoings. Such programs are now part of the organizational landscape across a range of business sectors in Canada and around the world. The NEB has received confidential disclosures in the past and we fully anticipate this trend will continue. In order to effectively manage these confidential disclosures, the NEB requires a formalized whistleblower program with policies and procedures tailored for its role as Canada’s national energy regulator. The Confidential Disclosure (Whistleblower) Program will provide the NEB with the reliable mechanism it needs to effectively receive and manage disclosures from concerned Canadians.

The NEB supports employees and others who want to make disclosures alleging acts of non-compliance by regulated companies. The NEB is very cognizant that such disclosures are sensitive and could place an employee or other person at risk of reprisal. The NEB is committed to having policies and procedures that protect and preserve, to the extent possible the confidentiality and anonymity of disclosures and the identity of Tipsters.

The policy and procedures of the NEB Confidential Disclosure (Whistleblower) Program embody the organization’s values of integrity, regulatory leadership, and accountability. This program provides the NEB with a reliable mechanism to receive and assess disclosures from employees of regulated companies and others while upholding the values of due process and impartial regulatory investigation.

Original signed by:

Peter Watson
Chair and CEO

Dated:

8 April, 2016

2.0 Purpose

The NEB Confidential Disclosure (Whistleblower) Program has been created pursuant to the National Energy Board Act. The purpose of this policy and these procedures is to:

  1. Facilitate the reporting of matters alleging non-compliance by companies regulated by the NEB, that an employee or other person believes may be a violation of the Act or Regulations.
  2. Create robust and reliable procedures to assess, manage, and resolve disclosures of alleged non-compliance in a timely and efficient manner.
  3. To provide prospective Tipsters with information about the program and other considerations.
  4. To protect the confidentiality and anonymity of Tipsters and their disclosures to the greatest extent possible.
  5. To provide Tipsters, to the extent practical, feedback on the status of their disclosure.
  6. To promote public confidence in the administration and activities of the NEB.

The purpose of this procedure is to ensure the continued high standards for the NEB Confidential Disclosure (Whistleblower) process and its records.

3.0 Definitions

The definitions in this section apply to this policy and these procedures.

Act – the National Energy Board Act.

Company – a company regulated by the NEB. Companies regulated by the NEB are required to seek authorization or approval for various activities and must comply with the National Energy Board Act, the Canada Oil and Gas Operations Act, the Canada Petroleum Act, and other laws of Canada.

Compensation – a reward, financial payment, consideration, indemnification, offer of employment, actual employment, or any other benefit.

Compliance verification tools – the tools used by the NEB to verify compliance with the Act and Regulations. Compliance verification tools include audits, inspections, compliance meetings, and investigations.

Confidential Disclosure (Whistleblower) Program – the NEB’s collective operational, administrative, and strategic mechanisms to receive, assess, investigate, and conclude disclosures of alleged acts of non-compliance by regulated companies.

DEC – Disclosure Evaluation Committee.

DEC Chair – the Vice President Systems Operations Business Unit who sits as Chair of the Disclosure Evaluation Committee.

Disclosure – a confidential written report about a company’s alleged act of non-compliance involving the Act and Regulations. A disclosure may be made anonymously but it must be received by the NEB in writing.

Disclosure reporting mechanism – the tools and mechanisms that the NEB employs to accept disclosures of alleged acts of non-compliance.

DIU – Disclosure Intake Unit.

Duty of responsibility – refers to the obligation for employees to first report alleged acts of non-compliance internally ‘up-the-ladder’ to their supervisor or other people inside the employee’s organization who have the lawful authority to deal with the problem.

Emergency – an event, or imminent event, outside the scope of normal operations that:

  1. Poses a clear and present significant threat to the health or safety of people, property, or the environment.
  2. Has caused serious injury to any person.
  3. Requires prompt coordination of resources to protect the health or safety of people, property, or the environment to limit actual or imminent harm. 

Enforcement tools – the tools used by the NEB to obtain compliance, deter future non-compliance, and prevent harm.

Environment – has the same meaning as described in section 2 of the Canadian Environmental Assessment Act (2012).

Good faith – a reasonable belief that an act of non-compliance actually occurred. A good faith disclosure to the NEB is neither frivolous, extortive, nor is it simply a report of an occupational grievance.

NEB - National Energy Board established by section 3 of the Act.

Non-compliance –

  1. A contravention of the Act or a Regulation made pursuant to the Act;
  2. Knowingly directing or counselling an individual to commit a contravention mentioned in paragraph (a);
  3. Directing or otherwise counselling any individual to refrain from reporting a contravention mentioned in paragraph (a).

Personal information – personal information as defined in section 3 of the Privacy Act.

Program – the NEB Confidential Disclosure (Whistleblower) Program.

Regulation – a regulation created by the Act.

Reprisal – any measure taken or directed against a Tipster because that Tipster has sought advice about making a disclosure, made a disclosure, co-operated in an investigation, declined to participate in an act of non-compliance, or done anything in accordance with the Act. Reprisals include adverse and unwarranted employment action such as:

  1. A dismissal, layoff, suspension, demotion or transfer, discontinuation or elimination of a job, change of job location, reduction in wages, changes in hours of work or reprimand;
  2. Unwarranted discipline;
  3. Any measure, other than one mentioned in paragraphsn (a) andn (b), that adversely affects a person’s employment or working conditions such as harassment, bullying, shaming, or shunning; and
  4. A threat to take any of the measures mentioned in paragraphn (a) ton (c).

Serious injury – serious injury as defined in section 1 of the National Energy Board Onshore Pipeline Regulations.

Specialist – an employee of the NEB skilled, trained, and responsible for investigative duties.

Tipster – a person who provides the NEB with a confidential disclosure of an alleged act of non-compliance. A Tipster may remain anonymous.

4.0 NEB Confidential Disclosure (Whistleblower) Model and Responsibilities

4.1 Model Phases

The NEB model for receiving, assessing, verifying, and resolving disclosures alleging acts of non-compliance promotes accountability, integrity, confidentiality, professionalism, and due process. Just like a team, each player in this model has a role and responsibilities. The Confidential Disclosure (Whistleblower) Model has four distinct phases.

Figure 4.1 Model Phases

Figure 4.1 Model Phases
Table 4.1 Model Phases
Phase National Energy Board Actions
Receive The NEB receives a written disclosure from a Tipster by way of an approved reporting mechanism.
Assess The disclosure is assessed and a course of action is established.
Action The NEB makes a definitive response to the disclosure. Examples of action may include verification of non-compliance using NEB compliance and enforcement tool as well as referring the disclosure to another lawful authority or regulator.
Conclude Disclosures may be concluded with or without resultant enforcement action. The NEB concludes the disclosure. Dispositions may include concluding the disclosure on grounds of insufficient information, as not falling within NEB jurisdiction, or as not being in the public interest. Disclosures may also be retained for information purposes.

Figure 4.2 Organizational Structure

Figure 4.2 Organizational Structure

4.2 Vice President of Systems Operations Business Unit

The Vice President of Systems Operations Business Unit:

  1. Has organizational responsibility and accountability for the NEB Confidential Disclosure (Whistleblower) Program.
  2. Chairs the Disclosure Evaluation Committee.
  3. May delegate tasks as required.
  4. Ensures that all physical and digital (electronic) documents, communication, correspondence, work, reports, assessments, information, dispositions, databases, and other things relating to disclosures and Tipsters are marked “Protected B”Footnote 1.

4.3 Tipster

The role of the Tipster is to:

  1. Use the NEB reporting mechanisms to submit a written disclosure alleging an act of non-compliance involving a regulated company.
  2. Advise the NEB in writing of the Tipster’s desire to remain anonymous if so desired. Such written notice is required by the NEB prior to receiving the disclosure.
  3. Use the confidential control number and password issued by the Disclosure Intake Unit in all subsequent communication with the NEB. 

The Tipster may:

  1. Choose to remain anonymous.
  2. Supply the NEB with documents, images, photos, and other information if the Tipster so desires. The decision to provide such information rests solely with the Tipster. The Tipster must acknowledge to the NEB that the Tipster has legal authority to provide such materials.
  3. Request updates on the status of the disclosure from the Disclosure Intake Unit in the prescribed manner.

The NEB will not ask the Tipster to conduct, review, consider, or otherwise review an investigative step or any activity on its behalf. Decisions regarding NEB compliance verification activities, courses of action, and dispositions rests with the NEB alone. The Tipster will not receive any form of compensation in exchange for submitting a disclosure.

4.4 Disclosure Intake Unit

The Disclosure Intake Unit (DIU):

  1. Is the only point of contact between the NEB and the Tipster.
  2. Monitors the NEB disclosure reporting mechanisms.
  3. Receives the written disclosure from a Tipster by way of the NEB disclosure reporting mechanisms.
  4. Assesses whether the disclosure is an emergency situation that requires an immediate response in which case the disclosure will be re-directed to the appropriate area.
  5. If possible, assigns a confidential control number and password to the Tipster to facilitate secure confidential and anonymous communication. The DIU may be unable to do so for disclosures that are received by regular mail.
  6. Provides standardized instruction and guidance to the Tipster:
    1. On the NEB disclosure response process, as well as limitations and possible outcomes to disclosures generally.
    2. To increase the Tipster’s awareness about an employee’ s duty to report problems to the employer.
    3. On strategies the Tipster can use to safeguard confidentiality and anonymity.
    4. On the limitations of the NEB to deter and investigate reprisals taken against Tipsters generally.
  7. Edits the original disclosure to remove details that could identify the Tipster.
  8. Presents the original disclosure and the edited disclosure to the Disclosure Evaluation Committee for approval. Retains physical control and does not copy, share, or otherwise distribute original disclosures, or any other related material, except as required by law.
  9. Receives written requests for additional information from the Tipster on behalf of the Disclosure Evaluation Committee and Specialist. Forwards these request to the Tipster using the confidential control number and password. Receives the response from the Tipster, edits the Tipster’s response to remove details that could identify the Tipster, and forwards the edited disclosure of the Tipster’s response to the Disclosure Evaluation Committee and the Specialist. All communication between the DIU and the Tipster must take place using prescribed approved NEB communication device(s) and shall be documented.
  10. In consultation with the Disclosure Evaluation Committee and the Specialist, responds to requests from the Tipster for updates on the status of the disclosure using standardized messaging.
  11. Maintains physical security and control of all documents, correspondence, and other physical and electronic records relating to the Tipster and the Tipster’s disclosures separate from all other NEB databases and processes.
  12. Completes program performance management reporting as required by the Disclosure Evaluation Committee.
  13. Participates in training as directed by the Disclosure Evaluation Committee.
  14. Conducts additional duties as directed by the Disclosure Evaluation Committee.
  15. Ensures that all physical and digital (electronic) documents, communication, correspondence, work, reports, assessments, information, dispositions, databases, and other things relating to disclosures and Tipsters are marked “Protected B”.

4.5 Disclosure Evaluation Committee

The Disclosure Evaluation Committee (DEC):

  1. Is chaired by the Vice President of Systems Operations Business Unit who is responsible for all aspects of the NEB Confidential Disclosure (Whistleblower) Program.
  2. Is comprised of Directors from the Systems and Field Operations Business Units and others, including technical specialists, as designated by the DEC Chair.
  3. Includes NEB counsel to provide the committee legal advice on matters involving Tipsters, disclosures, assessments, compliance verification, enforcement, dispositions, and other matters related to the program.
  4. Includes an employee assigned to the DIU as directed by the DEC Chair.
  5. Meets as directed by the DEC Chair.
  6. Approves all standardized and custom messaging between the NEB and the Tipster.
  7. Approves all program reporting forms.
  8. Approves all final dispositions (conclusions) of disclosures.
  9. Is presented with the original and edited disclosure by the DIU. Approves the edited version of the Tipster’s disclosure. Takes steps to make sure that the DIU retains physical control over original disclosures and does not copy, share, or otherwise distribute original disclosures except as directed by law.
  10. If the Tipster’s disclosure is determined to be an alleged act of non-compliance that falls within NEB jurisdiction, the DEC shall:
    1. Conduct a preliminary assessment of the disclosure using the elements described in Part 7.3 of this policy.
    2. Identify critical issues that may require immediate action.
    3. If required, request additional information from the Tipster through the DIU in the prescribed manner. A request for additional information from the Tipster (submitted by the DEC or the Specialist) shall remain open for a period of three weeks. The DIU will send a reminder to the Tipster after two weeks reminding the Tipster of the deadline. The DIU shall notify the DEC in the event that the Tipster does not respond to the request in the three-week period.
    4. Determine the seriousness of the alleged act of non-compliance, the likelihood of successful compliance verification, and whether pursuing further action is in the public interest.
    5. Identify specific allegations of non-compliance in the disclosure for the Specialist.
    6. Determine whether sufficient information exists to direct a Specialist to conduct compliance verification activities.
    7. Identify other matters that should be addressed as a result of the disclosure.
  11. If the DEC assesses that the disclosure is of a sufficient nature to warrant follow-up action, shall assign the edited version of the Tipster’s disclosure to an appropriate Specialist as decided by the DEC. The DEC shall establish diary dates and direct reporting timelines to ensure proper supervision and disposition of the matter.
  12. If at any time it is determined that the disclosure does not fall with the jurisdiction of the NEB, the DEC will prepare a brief report to be retained for intelligence purposes. The edited version of the Tipster’s disclosure may be directed to an appropriate lawful authority as directed by the DEC Chair.
  13. Regardless of the final disposition of a disclosure, shall ensure the Tipster receives notification by the DIU in the prescribed manner.
  14. Shall ensure strong supervision over the program especially as this relates to confidentiality.
  15. Shall review all Access to Information and Privacy Act responses that directly involve the Confidential Disclosure (Whistleblower) Program.
  16. Shall conduct and document policy, training, and performance measurement reviews annually and as directed by the DEC Chair. Any issues arising from such reviews must be addressed in a timely fashion in a manner determined by the DEC Chair.
  17. Shall maintain meeting minutes and document its rationale for its decisions and dispositions relating to disclosures.
  18. Shall make notifications to the Chief Operating Officer, Chief Executive Officer, and Board that a disclosure has been received or concluded, and other notifications as required consistent with NEB policy. Such notifications must be done in a manner that protects the confidentiality of the disclosure and the anonymity of the Tipster in accordance with this policy. The DEC shall make a record of the occasion and manner of such notifications.
  19. Takes steps to make sure that all physical and digital (electronic) documents, communication, correspondence, work, reports, assessments, information, dispositions, databases, and other things relating to disclosures and Tipsters are marked “Protected B”.

4.6 Specialist

The Specialist:

  1. Shall be assigned the edited version of the Tipster’s disclosure for action as directed by the DEC.
  2. Shall use the edited version of the Tipster’s disclosure as a starting point for any ensuing compliance verification activities. Like the original, the edited version is a confidential document and shall remain as such. It shall not be included as an attachment to the investigative report, copied, shared, or otherwise distributed unless required by law. The Specialist shall adhere to the policies surrounding confidentiality as explained in this policy.
  3. Will be mindful that all allegations require corroboration and any ensuing compliance verification activities must be conducted professionally and in observance of the principle of due process.
  4. Shall provide updates on the status of compliance verification activities to the DEC and the DIU as requested.
  5. With the exception of the edited version of the Tipster’s disclosures, shall process and submit the investigative report in the usual manner. The disclosures described are to be returned to the DEC and will not form part of the investigative report.
  6. Takes steps to make sure that all physical and digital (electronic) documents, communication, correspondence, work, reports, assessments, information, dispositions, databases, and other things relating to disclosures and Tipsters are marked “Protected B”.
  7. If required, request additional information from the Tipster through the DIU in the prescribed manner. A request for additional information from the Tipster (submitted by the DEC or the Specialist) shall remain open for a period of three weeks. The DIU will send a reminder to the Tipster after two weeks reminding the Tipster of the deadline. The DIU shall notify the Specialist and the DEC in the event that the Tipster does not respond to the request in the three-week period.

4.7 The Chief Operating Officer, Chief Executive Officer, and the Board

The role of the Chief Operating Officer (COO), Chief Executive Officer (CEO), and the Board in this program is to support the work of the DEC and set an appropriate supportive tone for the Confidential Disclosure (Whistleblower) Program. The DEC may provide information to the COO, CEO, and Board about specific disclosures in accordance with NEB policies. Such notifications must be conducted in a manner that protects the confidentiality of the disclosure and the anonymity of the Tipster.

5.0 Confidentiality

5.1 Confidentiality as a Matter of Practice

All NEB employees involved in any aspect of the Confidential Disclosure (Whistleblower) Program are required to manage their communications, activities, and reporting in such a way as to maximize confidentiality. Breaches in confidentiality may:

  1. Reveal the identity of the Tipster and expose the Tipster to retaliation.
  2. Notify potential violators that the NEB is aware of the alleged act of non-compliance. This could allow violators an opportunity to tamper with evidence, interfere with witnesses, and obstruct the NEB’s verification of compliance.
  3. Deny due process by revealing the names of regulated companies who have not yet responded to the allegation of non-compliance.
  4. Damage the reputation of employees, regulated companies, and the NEB.
  5. Undermine the integrity, performance, and reputation of the NEB.

Notwithstanding the requirement to maximize confidentiality, as noted above, decisions regarding NEB compliance verification activities, courses of action, and dispositions are up to the NEB alone.

5.2 Procedures to Enhance Confidentiality

In order to maximize the confidentiality of disclosures and the identity of Tipsters the following procedures must be observed:

  1. Only NEB employees with an absolute ‘need-to-know’ will be permitted to review an original disclosure. Under most circumstances such need is strictly limited to the DEC Chair, members of the DEC, and members of the DIU. Any other NEB employees who feel they have a ‘need-to-know’ must receive documented permission from the DEC Chair.
  2. Correspondence, e-mails, and other written reports generated or passing through organizational areas outside of the DIU shall not make reference to particular Tipsters by name, password, code words, or any other identifiers including gender. If the Tipster must be referenced in internal NEB correspondence the Tipster shall only be referred to as a ‘Tipster’. Part 7.6(d) provides direction on how to refer to the Tipster and the Tipster’s information in public and external situations.
  3. All written disclosures, information regarding the Tipster’s identity, correspondence to and from the Tipster, and other documents that could reveal the Tipster’s identity will be physically and electronically collected, stored, secured, and managed by the DIU separate and isolated from other NEB databases.
  4. All physical and digital (electronic) documents, communication, correspondence, work, reports, assessments, information, dispositions, databases, and other things relating to disclosures and Tipsters are marked “Protected B”.

6.0 Anonymous Disclosures

6.1 NEB Will Accept Anonymous Written Disclosures

The NEB will accept anonymous written disclosures. The NEB will:

  1. Advise the Tipster of the legal limitations to protect the confidentiality of the Tipster’s identity and the disclosure.
  2. Not offer the Tipster any guarantee about protecting absolute and unconditional confidentiality over the disclosure or the Tipster’s identity or anonymity.
  3. Require the Tipster to make a written declaration to the NEB seeking anonymity or alternately waiving a claim of anonymity.
  4. Advise the Tipster when a lawful or inadvertent release of information that could likely reveal the identity of the Tipster has occurred or is imminent.

Anonymous disclosures that are deemed by to be emergencies will be re-directed to the NEB emergency line and treated with the same degree of confidentiality as disclosures managed by the Confidential Disclosure (Whistleblower) program. After the emergency situation has been resolved, such anonymous disclosures will be managed by the program according to these policies and procedures.

7.0 Receiving Disclosures

7.1 Disclosures Alleging Acts of Non-Compliance

Confidential and anonymous disclosures alleging acts of non-compliance are received by the DIU using the NEB approved reporting mechanisms. These reporting mechanisms provide employees of regulated companies and others a secure and reliable channel to report acts alleging non-compliance that otherwise might remain unreported and undetected. The NEB does not offer Tipsters compensation of any sort. Once received, the information in the disclosure belongs to the NEB and it is up to the NEB to determine methods and timings of compliance verification activities.

The Confidential Disclosure (Whistleblower) Program is designed to limit the number of people handling the disclosures. This control feature enhances confidentiality over the Tipster’s identity and disclosures.

Emergency situations reported to the DIU are required to be immediately directed to the NEB Emergency Line: 403-807-9473.

7.2 Guidance for Tipsters

The NEB will provide guidance to Tipsters by way of approved messaging posted onto the website and online reporting tool. That guidance shall include:

  1. Reasons why disclosures are to be submitted in writing. There are several reasons why the NEB requires disclosures alleging acts of non-compliance be submitted in writing:
    1. Important information is often omitted during a spoken conversation. Words, phrases, and facts may be misinterpreted or misunderstood by both parties. Important details about the alleged act of non-compliance may be missed.
    2. In the event that a Tipster is the subject of a reprisal, the Tipster must be able to demonstrate that he or she has actually reported the alleged act of non-compliance. An allegation made in writing is a substantially more definitive record than an attestation to a verbal conversation.
    3. Written communication is often the best way to safeguard anonymity because the Tipster can control content and provide fewer personal details.
    4. In rare instances, a Tipster may not be reporting to the NEB in good faith. The act of placing the disclosure into writing requires a degree of effort and commitment. It is a filter to discourage frivolous grievances and extortive disclosures.

7.3 Elements of a Disclosure

The NEB will provide guidance to potential Tipsters about the elements and factors that affect the assessment of disclosures including:

  1. Good Faith. Disclosures that are frivolous or extortive are not considered to have been provided to the NEB in good faith. The DEC shall assess whether there is any reason to suspect that the Tipster has not made the disclosure to the NEB in good faith and what impact, if any, this might have on the NEB response.
  2. Act of Non-Compliance. The activities reported by the Tipster must meet the definition of an act of non-compliance. Those reports that do not meet the definition are outside the designs of this program. The DEC shall decide on suitable means to close such a report.
  3. Not Provided in Writing. The disclosure must be submitted to the NEB in writing by a Tipster or alternately by a Specialist who has received the disclosure directly as described in Part 7.4(c).
  4. Recency of the Alleged Act of Non-Compliance. Acts of non-compliance that are alleged to have occurred months or years ago may be more difficult to verify and prove. Many types of evidence including records, witness recollection, and property or environmental damage fade and deteriorate over time. On occasion such challenges cause significant impediments to successful compliance verification activities. The DEC shall assess the recency of the allegation and the impact, if any, on the NEB response.
  5. Concerns Reported to Company. Under most circumstances, employees are expected to report workplace concerns to their employer first. The DEC shall assess whether the Tipster has:
    1. Reported the alleged act of non-compliance to the regulated company.
    2. The response by the regulated company, if any.
    3. The impact upon the disclosure and any actions contemplated by the NEB.
  6. Quality of Disclosure. A disclosure that is based on second hand information, vague accounts, and generalities lacks the specific type of information required by the NEB to trigger compliance verification activities. Disclosures should provide specific details such as:
    1. Specific dates and locations of alleged acts of non-compliance.
    2. The name of the pipeline and/or facility involved.
    3. Where possible, specific violations of the Act or Regulations.
    4. The name of the individual or individuals alleged to have committed or are about to commit an alleged act of non-compliance.
    5. Identities of witnesses present or those who may have knowledge of the alleged act of non-compliance.
    6. Information about whether the alleged act of non-compliance was reported to the company.
    7. Information about how the company responded or failed to respond to an internal report of the alleged act.
    8. Reasons (if any) why the company was not advised of the alleged act of non-compliance.
    9. Other witnesses that could be interviewed.
    10. Types and location of other information (documentation, incident reports, photos, etc.) that could be available
    11. Actual consequences of the alleged act of non-compliance such as injuries, damage to property, damage to the environment etc.
    12. Reprisals (real and threatened) to the Tipster or others.
    13. Whether the disclosure has already been reported the NEB.
  7. Within NEB Jurisdiction. The DEC shall assess whether the alleged act of non-compliance is within NEB jurisdiction. If the matter does not fall within NEB jurisdiction, the DEC shall decide on referring the matter to the appropriate lawful authority.
  8. Public Interest. The DEC shall assess whether it is in the public interest to act on the disclosure of alleged act of non-compliance.

7.4 National Energy Board Reporting Mechanisms

The NEB approved reporting mechanisms are:

  1. The National Energy Board Confidential Disclosure Online Reporting Tool. This web-based online tool will be the NEB’s primary and preferred reporting mechanism. This standardized online tool is accessed on the NEB’s website and is monitored by the DIU. Tipsters may follow the prompts to complete the written disclosure. 

    The function of the online reporting tool is to:
    1. Receive disclosures alleging acts of non-compliance from employees of regulated companies and other people.
    2. Communicate with Tipsters in a controlled and secure manner.
    3. Deliver standardized and customized messaging to Tipsters.
    4. Post general information about the NEB Confidential Disclosure (Whistleblower) Program.
  2. The National Energy Board mailing address. Although accepted, written disclosures sent to the NEB by way of traditional mail are not preferred. Secure and confidential follow-up correspondence between the NEB and the Tipster may be difficult if the Tipster does not provide confidential contact information in the letter.
    Written disclosures alleging acts of non-compliance can be mailed to:

    The National Energy Board
    Confidential Disclosure (Whistleblower) Reporting Centre
    Suite 210, 517 Tenth Avenue SW
    Calgary, Alberta  T2R 0A8
  3. Direct Disclosures to Specialists.

    Specialists work in the field and conduct compliance verification activities at the facilities of regulated companies. It is not uncommon for Specialists to receive verbal disclosures alleging acts of non-compliance during on-site visits or over the telephone. Tipsters as described above take significant risks in making their disclosures in person to a Specialist. These Tipsters often request or expect confidentiality and anonymity.

    In the field, Specialists might act immediately and respond to the disclosure. Other times such an option may not be available or practical. Verbal disclosures to a specialist should happen only in exceptional circumstances and these verbal allegations will require written confirmation at the earliest possible opportunity.

    Part 7.6 explains the policies and procedures for Specialists who receive direct disclosures in-person or over the telephone.

7.5 Procedures upon Receipt of Disclosure

When the DIU receives a written disclosure alleging an act of non-compliance it shall:

  1. Assign the Tipster a password and control number. The Tipster password and control number are used to authenticate the Tipster during subsequent correspondence between the Tipster and the NEB.
  2. Assign the disclosure an indexed file number.
  3. Within two business days of receiving the original disclosure from the Tipster, provide the Tipster the password, control number and file number by way of the Tipster’s preferred e-mail address.
  4. Within two business days of receiving the original disclosure from the Tipster, notify the DEC that a disclosure has been received.
  5. Within three business days of receiving the original disclosure from the Tipster, review the original disclosure, write an edited version of the disclosure to remove details that might reveal the identity of the Tipster.
  6. Meet with the DEC as directed, present both the original and edited disclosure for DEC approval.
  7. Complete additional reports as required.
  8. Ensure that physical security and control over all documents, correspondence, and other physical and electronic records relating to the Tipster and the Tipster’s disclosures are maintained and kept separate from all other NEB databases and processes.
  9. Ensures that all physical and digital (electronic) documents, communication, correspondence, work, reports, assessments, information, dispositions, databases, and other things relating to disclosures and Tipsters are marked “Protected B”.

7.6 Disclosure Received Directly by Specialists

In the event a Specialist receives a disclosure from a Tipster directly, the Specialist shall request that the Tipster make a written report to the NEB using one of the approved reporting mechanisms.

  1. If the disclosure is received in the field and it is practical to act upon the disclosure immediately, the Specialist may take appropriate action during the on-site visit providing the Specialist takes efforts to adequately protect the confidentiality and anonymity of the Tipster to the extent possible. After the action the Specialist will:
    1. As soon as practical, complete a hand-written Disclosure to Specialist report and deliver the form to the DIU. In order to maintain confidentiality protocols, this report is not to be written, stored, transmitted, or otherwise saved on NEB information technology systems other than the isolated DIU database.
    2. Once received by the DIU the Disclosure to Specialist form will be managed in the same manner as a disclosure received by way of the regular approved reporting mechanisms.
  2. If the disclosure is received in the field but it is not practical to act upon the disclosure immediately, the Specialist will:
    1. As soon as practical, make an investigative note and follow-up on the information in an appropriate manner that protects the confidentiality of the disclosure and the anonymity of the Tipster.
    2. As soon as practical complete a hand-written Disclosure to Specialist report and physically deliver the form to the DIU. In order to maintain confidentiality protocols, this report is not to be written, stored, transmitted, or otherwise saved on the NEB information technology systems other than the isolated DIU database.
    3. Once received by the DIU the Disclosure to Specialist form will be managed in the same manner as a disclosure received by way of the regular approved reporting mechanisms.
  3. If the Specialist receives a telephone call from a prospective Tipster wishing to provide a disclosure, the Specialist is to direct the potential Tipster to report the disclosure using one of the NEB approved reporting mechanisms. Specialists are not to receive disclosures over the telephone. The Specialist shall complete the Disclosure to Specialist form and submit the form to the DIU in the prescribed manner.
  4. When referring to the Tipster in written investigative reports, investigative notes, external conversation, interviews, or by other means are, or will likely become public, the Specialist shall use the term “Tipster”. Similarly, when referring to any information provided by the Tipster in such circumstances, the Specialist will use the term “information of unknown reliability.”

7.7 Preparation of Binder

The DIU will organize all the program forms, reports, and other printed material relating to particular disclosures into a hardcover binder with a front and rear cover page. This is a security measure to ensure that all the printed material stays together and is shielded from view.

7.8 DIU to Scan Original Documents

Some forms associated to the program will be completed by hand. This is a security measure to ensure that information relating to the disclosure and the Tipster are not prepared on or otherwise transferred to the NEB main data bases and intranet. The DIU will scan original documents onto the stand-alone dedicated program database.

8.0 Preliminary Assessment of Disclosures

8.1 The Role of the Disclosure Evaluation Committee in Conducting Preliminary Assessments of Disclosures

The DEC is responsible to conduct a preliminary assessment of the disclosure and decide on a suitable response. The DEC members have the technical expertise and organizational experience to recognize potential instances of non-compliance, identify suitable compliance verification activities, and recommend appropriate enforcement actions.

After being notified by the DIU that the NEB has received a disclosure the DEC Chair will convene a meeting during which it will:

  1. Review and analyze the original disclosure. 
  2. Approve the edited version of the original disclosure or direct the DIU to make changes. Once the DIU has made changes as directed, the DEC must approve the report. This edited version may be shared with a Specialist and therefore its contents must be approved by the DEC.
  3. Decide on a course of action. The decision making process will be consistent with the policies and procedures established by the NEB.

That meeting should occur as soon as practical but it must occur within five (5) working days of the initial DIU notification.

8.2 Components of the Assessment

The DEC will assess the elements of the disclosure described in section 7.3 of this policy. This preliminary assessment shall be documented to demonstrate accountability, transparency, and program integrity. This preliminary assessment will guide the DEC’s decisions regarding dispositions, compliance verification activities, and enforcement actions.

8.3 Disposition and Course of Action

After conducting a preliminary assessment of the disclosure the DEC shall decide on a course of action and shall make a disposition on the disclosure. The DEC shall choose from one of the following dispositions:

  1. Additional Information From Tipster Required. 

    If the DEC decides that it requires additional information from the Tipster before it can reach an informed decision, the DEC shall provide a list of written questions for the Tipster to the DIU. The DIU shall then send a secure e-mail to the Tipster using prescribed protocols requesting the additional information the DEC has requested. The DEC shall provide timelines for the Tipster to respond. If the Tipster responds, the DIU will edit the response and advise the DEC that a response has been received. The DEC shall assess the edited response. Responses returned by Tipsters outside the provided timelines will be reviewed by the DEC on a case-by-case basis.

    The DEC shall not request the Tipster seek out physical evidence, or act on its behalf in anyway. Requests for additional information shall only be delivered in the form of questions or clarifications for the Tipster. The Tipster is under no obligation to reply to a request for additional information.
  2. Alleged Act of Non-Compliance Is Not Within Jurisdiction of National Energy Board.

    If the DEC reaches the conclusion that the alleged act of non-compliance involves a matter that is not within the jurisdiction of the NEB, it shall conclude the matter. The DEC should assess whether the edited version of the Tipster’s disclosure should be shared with an appropriate lawful authority and/or another regulator. If shared, it must be done in a manner that protects the confidentiality of the disclosure and the anonymity of the Tipster.
  3. Insufficient Information to Proceed. 

    If the DEC assesses that the disclosure:
    • Has not met the definition of an act of non-compliance; or
    • Is not suitable to justify compliance verification activities;
    Then the DEC may conclude the disclosure as having insufficient information to proceed. The Tipster shall be notified of the disposition and invited to provide more information.
  4. Assign to Specialist for Compliance Verification Activities. 

    If the DEC assesses that the disclosure is suitable for compliance verification activities, it shall be assigned to a Specialist as determined by the DEC. The DEC shall provide the Specialist with the edited version of the Tipster’s original disclosure only.  The original disclosure shall be returned to the DIU. The DEC shall identify specific allegations of non-compliance and provide the Specialist with instructions including direction on protecting the confidentiality of the disclosure.

In every case, the DEC shall require the DIU to advise the Tipster of the disposition. The DEC shall also make a notification to the COO in each instance a disclosure has been concluded.

9.0 Compliance Verification Activities

9.1 Conducting Compliance Verification Activities Initiated by a Confidential Disclosure

When the DEC concludes that the Tipster’s disclosure requires a closer review, it shall assign the edited disclosure to a Specialist for follow-up. In consultation with the DEC, the Specialist will determine the most appropriate method for verifying compliance to regulatory requirements. Established NEB compliance verification methods include:

  1. Audits.
  2. Field Inspections.
  3. Emergency Evaluations and Review of Manuals.
  4. Compliance Meetings:
    1. Information Exchange Meetings.
    2. Compliance Screening Meetings.
    3. Implementation Assessment Meetings.
    4. Assessment Exchange Meetings.

If warranted, the NEB may use compliance and enforcement tools to obtain compliance, deter future non-compliance, and prevent harm to public safety and the environment, including:

  1. Notice of Non-Compliance and Assurance of Voluntary Compliance.
  2. Officer Orders.
  3. Administrative Monetary Penalties.
  4. Board Orders.
  5. Revocation of Authorization.
  6. Disallow or Suspend Tariff.
  7. Referral for Prosecution.

9.2 Additional Procedures

When conducting compliance verification activities and enforcement actions involving confidential disclosures, the following additional procedures apply:

  1. The Specialist shall draw and use a separate and different file number for the investigative report. The disclosure file number may not be used or referenced in the investigative report.
  2. The edited version of the Tipster’s disclosure shall be used only as a tip. Its reliability cannot be assured. Therefore, in order to be used in any type of legal or regulatory proceeding, all information provided by the Tipster in the edited disclosure must be corroborated independently by the Specialist.
  3. A Tipster’s edited disclosure is a confidential document. It has been edited to protect the confidentiality and the anonymity of the Tipster. It is not intended nor is it permitted to form part of the investigative report prepared by the Specialist. It may not be copied, shared, saved to a computer, transmitted, photographed, or disclosed in any way to any person unless required by law. It must remain under the control and care of the Specialist until the Specialist has concluded the matter. At that time, the Specialist is to physically return the edited disclosure to the DIU. 
  4. In the event the Specialist has any questions for the Tipster or requires clarification, the Specialist will provide the DIU with a request for additional information following the same procedures as followed by the DEC. This document is also confidential. It is not to be copied, shared, saved to a computer, transmitted, photographed, or disclosed in any way to any person except as required by law. 
    1. The DIU will send the request to the Tipster. It shall immediately notify the DEC that a request for additional information has been sent.
    2. If the Tipster responds, the same protocol will be followed as with original disclosures explained in Part 9.

10.0 After-Action Dispositon

After the Specialist has completed compliance verification activities and any enforcement activities, the Specialist shall notify the DEC. The disclosure will be concluded with the following disposition:

  1. Compliance Verification Has Been Completed. 

    The DEC must notify the Tipster through the DIU that a verification into the Tipster’s disclosure has been concluded. The DEC will decide how much detail the NEB will share with the Tipster about the action. Generally, the DEC should share any information that the NEB has made public. The timing of this notification is at discretion of the DEC.

11.0 Service Standards

In order to establish and maintain public confidence and trust it is necessary for the NEB to manage the Confidential Disclosure (Whistleblower) Program in a timely manner. The principle of timeliness is a consistent feature of the program. In almost all circumstances the deadlines, diary dates, and other timings will be established at the direction of the DEC. Such timings shall generally be established so that the task is completed as soon as practical.

To demonstrate accountability, all directives and instruction made by the DEC shall be time sensitive and diary dated. The diary dates are to be noted and tracked. The DEC shall establish diary dates based on the urgency of the situation.

The program has five specific service standards:

  1. Within two business days of receiving an initial disclosure from a Tipster, the DIU shall:
    1. respond to the Tipster providing the Tipster a password, control number, and file number.
    2. notify the DEC that a disclosure has been received (Part 7.5).
  2. Within three business days of receiving an initial disclosure from a Tipster, the DIU shall review the original disclosure and write an edited version to remove details that might reveal the identity of the Tipster (Part 7.5).
  3. Within five business days of being notified by the DIU that the NEB has received a disclosure the DEC shall meet to review the disclosure, conduct a preliminary assessment, decide on a course of action, and assign a disposition (Part 8).
  4. A request for additional information from the Tipster (requested by the DEC or the Specialist) shall remain open for a period of three weeks. The DIU will send a reminder to the Tipster after two weeks reminding the Tipster of the deadline. The DIU shall notify the DEC and Specialist in the event that the Tipster does not respond to the request in the three-week period (Part 7).

An NEB employee receiving directives and instruction must abide by the deadlines. In the event an NEB employee is unable to meet the deadlines that employee must:

  1. Notify the DEC that the deadline will not be met.
  2. Provide a reason why the deadline cannot be met.
  3. Request an extension of the deadline.

12.0 Reprisals

12.1 Authority

The employment relationship and the appropriateness of employment action are governed by courts and other tribunals. Prior to receiving a disclosure, the NEB must notify potential Tipsters of the NEB’s defined role in relation to reprisals.

In the event that a Tipster makes an allegation of a reprisal to the NEB the matter will be recorded and assessed by the DEC. The DEC will consider what, if any, response may be taken by the NEB.

Section 6.3(1)(a) of the Onshore Pipelines Regulations requires regulated companies to have a policy for the internal reporting of hazards, potential hazards, and near misses that includes the conditions under which a person who makes a report will be granted immunity from disciplinary action. The NEB has a mandate to review such policies pursuant to this regulation.

Notwithstanding a breach of this section, the NEB has no authority to compel a regulated company to rehire a person that the regulated company has terminated.

13.0 Training and Process Performance

13.1 Training

The DEC will produce a written training program for NEB employees involved in the NEB Confidential Disclosure (Whistleblower) Program. The DEC will review that training program on an annual basis as directed by the DEC Chair. That review will:

  1. Validate documentation of completed training including names of candidates, dates of completed training, and training topics.
  2. Assess the effectiveness of the training program.
  3. Provide recommendations and a plan for action on improvements to the training program.

The annual assessment of the training program is to be documented in writing and presented to the DEC.

13.2 Process Performance

The DEC will maintain records of the program’s performance. Such performance management measurements are critical to evaluating the effectiveness and efficiencies of the program. The DEC will establish the types of performance indicators to be gathered and maintained. The DIU will be tasked with collecting the data as directed by the DEC.

At a minimum, these performance indicators will include:

  1. A regularly scheduled review of the program’s recordkeeping procedures in a manner determined by the DEC Chair. Such review must examine the effectiveness with which NEB policies and procedures protect the confidentiality of disclosures and the anonymity of Tipsters.
  2. Disclosures received per reporting period (quarterly, semi-annually, annually,).
  3. Percentage of anonymous disclosures.
  4. Measurement of time from receipt of disclosure until conclusion and all significant milestones in between.
  5. Types of non-compliance alleged.
  6. Types of dispositions used to conclude disclosures.
  7. Program training costs, number of employees trained, work hours spent attending training.
  8. Companies subject of a disclosure alleging non-compliance.
  9. NEB organizational areas involved in the response to a disclosure.
  10. NEB compliance verification and enforcement tools employed in the course of investigating the disclosure.
  11. Final dispositions of NEB matters initiated due to a disclosure from a Tipster.

13.3 Process Improvements

The DEC will review these written policies on an annual basis as directed by the DEC Chair. That review will include:

  1. A written assessment the effectiveness of the program’s written policies and procedures.
  2. Recommendations and a plan of action for improvements to the program.

The annual assessment of the program’s policy review is to be documented in writing and presented to the DEC.

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