Whistleblower protections

Whistleblowers perform a public service and contribute to a stronger culture of compliance within the industry by providing original information about misconduct that would otherwise be difficult to detect. With the assistance of whistleblowers, we can prevent or limit further harm to investors and better protect the integrity of our market.

The Ontario Securities Commission (OSC) will make all reasonable efforts to protect the identity of whistleblowers. Under Ontario’s Securities Act and Commodities Futures Act (the Acts) the OSC may take enforcement action against employers who take reprisals against whistleblowers. Whistleblowers also have the option to report anonymously if they are represented by a lawyer.

Whistleblower protections apply regardless of whether the information provided to the OSC results in enforcement action. Protections also apply if a whistleblower does not meet the criteria for an award.

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Confidentiality

The OSC will make all reasonable efforts to protect the identities of whistleblowers.

The OSC will not share a whistleblower's identity, or information that could reasonably be expected to reveal the whistleblower's identity, with another regulator or law enforcement agency without the whistleblower's explicit consent.

If our staff attempt to contact a whistleblower by phone for further information, they will not leave a voicemail message unless the voicemail greeting clearly indicates that the phone number belongs to the whistleblower.

Circumstances where a whistleblower's identity may be revealed

Certain circumstances may require that an identity be disclosed, such as when required by law including when disclosure is necessary to permit a respondent or defendant to respond to allegations or to prepare their defence.

In addition, if a whistleblower consents to the OSC sharing their information with other regulatory authorities, exchanges, or law enforcement agencies, the OSC cannot guarantee that these third-party organizations will keep the whistleblower's identity confidential.

Employer reprisals

Under the Acts, it is an offence to take reprisal against an employee who reports or plans to report one or more potential violations of securities law.

A reprisal is any measure taken against an employee that "adversely affects" their employment. Examples include:

  • disciplining, demoting or suspending the employee, or threatening to do so
  • intimidating or coercing the employee in relation to his or her employment
  • imposing or threatening to impose a penalty relating to the employee’s employment
  • terminating or threatening to terminate the employee

In addition, an employee who has faced reprisal may seek certain civil remedies through the court system if arbitration under a collective agreement is not available. The onus will be on the company to prove it did not take a reprisal against an employee. Protections which are possible under the OSC’s Whistleblower program include the employee’s reinstatement and the payment of two times the amount of lost pay.

These provisions apply regardless of whether misconduct is reported:

  • internally to the employer
  • to the OSC
  • to a recognized self-regulatory organization like the Canadian Investment Regulatory Organization (CIRO) (formerly New Self-Regulatory Organization of Canada (New SRO)) or its predecessors, the Investment Industry Regulatory Organization of Canada (IIROC) and the Mutual Fund Dealers Association (MFDA), or
  • to a law enforcement agency

The Acts also void certain provisions of contractual agreements between employers and employees designed to silence whistleblowers from reporting securities-related misconduct.

“The Commission expects that employees be free to raise concerns about potential breaches of Ontario securities law without fear of adverse impacts on their employment.”

- Oral Reasons for Approval of a Settlement: In the Matter of Coinsquare, par. 4

Anonymous submissions

Anonymous whistleblowers are eligible to receive a possible reward; however, the whistleblower will have to disclose their identity to the OSC following an award eligible outcome. The whistleblower may have to provide additional information to enable the OSC to verify that the whistleblower meets the eligibility criteria before any award, if applicable, can be made.

If a whistleblower chooses to submit anonymously through a lawyer, the following three-step process applies:

  1. The whistleblower must print the prescribed OSC whistleblower submission Form A or B and provide a completed and signed form to their lawyer to retain.
  2. The whistleblower's lawyer must then complete the prescribed whistleblower submission form on an anonymous basis on behalf of the whistleblower, certifying, among other things, that the lawyer has been provided with a completed whistleblower submission form by the whistleblower.
  3. The whistleblower's lawyer submits the prescribed whistleblower submission form and lawyer certification, either online or by mail on their client's behalf.

If additional information is required beyond the initial submission form, the OSC may contact the whistleblower's lawyer.