The new whistleblower office of the Ontario Securities
Commission (OSC) is set to open this summer. As reported in prior
bulletins, the OSC is prepared to make payments of up to $5 million
for whistleblowers who supply information which leads to successful
prosecutions. This is likely to have implications for how Canadian
listed companies deal with their employees.
In addition to soon having new rules and procedures for whistle
blowing, the OSC also has a new Chair, Maureen Jensen. According to
recent media reports, Jensen says that there have already been
numerous calls from people asking the OSC for implementation
details. It is unclear whether this means that there are a lot of
complainants waiting for the financial awards to come, but that
would not be at all surprising. Jensen has said that the program is
expected to get final approval in June 2016.
The OSC's plans for the whistleblower office will likely be
shaped by US experience over the past 5 years. In particular, the
Securities and Exchange Commission (SEC) has, since 2011, operated
a program from which the OSC regime is modeled.
As part of the release of its annual update on the program, the
SEC's March 2016 report highlighted that more than $30 million
was paid during fiscal 2015 to a single overseas whistleblower. In
the related press release, Sean McKessy, Chief of the SEC's
Office of the Whistleblower, said that greater public awareness of
the program and the large awards have helped the SEC to bring
successful enforcement actions. The obvious message is that
whistleblowing is a growth area from the perspective of regulators,
so employees with potential complaints and the possibility of
related awards are likely to be on the rise. This will likely lead
to further risks and related management work for employers.
Employees operating in the Canadian markets will want to give
close consideration to how these developments might impact their
business. One consistent trend from the US has been a more
concerted focus on codes of conduct and related internal audit and
complaint procedures. Even though these processes cannot preclude
employees or others from pursuing external complaints (since as a
general rule, parties cannot "contract out of statutes"),
there may be some benefit in terms of being able to understand and
address issues prior to being subject to external scrutiny and
sanction. In addition, there is likely to be at least some scope
for variations with respect to penalties based on how the
complainant/employee was dealt with prior to relevant enforcement
proceedings being undertaken. We anticipate having more detailed
updates once relevant rules have been finalized and adopted.
The foregoing provides only an overview and does not
constitute legal advice. Readers are cautioned against making any
decisions based on this material alone. Rather, specific legal
advice should be obtained.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).