Securities regulators in Ontario and Quebec recently announced the launches of separate whistleblower programs in the two jurisdictions. While the Ontario Securities Commission’s (OSC) whistleblower program (OSC Program) provides for the payment of monetary rewards, Quebec’s Autorité des marchés financiers (AMF) has indicated that its whistleblower program (AMF Program) will not include payments to whistleblowers because its analysis of whistleblower programs did not establish that a financial reward results in more reliable or higher-quality whistleblowing.
In Ontario, the launch of the whistleblower program is accompanied by changes to the Securities Act (Ontario) (Ontario Act) to incorporate broad “anti-retaliation” provisions that the OSC had said would form part of its whistleblower program.
OSC PROGRAM LAUNCH
The OSC announced that it would launch the OSC Program on July 14, 2016, and named Kelly Gorman, formerly a deputy director in the OSC’s Enforcement Branch, as chief of the Office of the Whistleblower.
Notwithstanding the OSC announcement of the launch of its whistleblower program, the OSC has not yet responded to more than 20 comment letters that were submitted earlier this year on the proposal and has not released the final version of its policy. It is unclear what changes will be made to the policy in response to comments. Under the draft policy that was released for public comment, whistleblowers who provide information that leads to successful enforcement action would be eligible for a cash award of up to C$5-million. In our May 2016 Blakes Bulletin: Commenters Reiterate Concerns about OSC’s Proposed Whistleblower Program, we reviewed the responses of stakeholders to the proposed policy and their continued concerns that the OSC Program would undermine internal compliance and reporting mechanisms and that the amount and structure of the reward under the OSC Program were inappropriate.
Our October 2015 Blakes Bulletin: Proposed OSC Whistleblower Policy Provides Greater Incentive for Employees to Report Misconduct to Regulator outlines the proposed Policy.
AMF PROGRAM LAUNCH
The AMF also announced recently that it would launch its own whistleblower program. In contrast to the OSC’s approach, the AMF reaffirmed its decision not to include financial rewards in the AMF Program on the basis of an analysis of whistleblower programs, including those of the U.S. Securities and Exchange Commission, the U.K. Financial Conduct Authority and the Australian Securities and Investments Commission. The AMF said that the analysis did not clearly demonstrate that financial incentives generate higher-quality reporting. Rather, the AMF has suggested that the protections offered to whistleblowers are the most important component of an effective whistleblower program.
The AMF has announced that whistleblowers who report wrongdoing have the benefit of “informer privilege” from the moment the wrongdoing is reported. The AMF has also indicated that it intends to work with the Quebec government to include additional anti-retaliation measures in financial services legislation.
SWEEPING ANTI-RETALIATION PROVISIONS ADDED TO ONTARIO ACT
Prior to the launch of the OSC Program, and the release of the final Policy, anti-retaliation measures that were promised as part of the OSC Program have been adopted as amendments to the Ontario Act, effective June 28, 2016. The Ontario Act additions include broad prohibitions on reprisals against employees who seek advice about providing; express an intention to provide; or do provide information about conduct they reasonably believe to be contrary to Ontario securities law, or a by-law, or other regulatory instrument of a recognized self-regulatory organization to any of the following:
- The OSC
- A recognized self-regulatory organization
- A law enforcement agency
The new provisions in the Ontario Act also render void any provision of an agreement that precludes or purports to preclude an employee from providing information of the type described above to the OSC, a recognized self-regulatory organization or a law enforcement agency.
The anti-retaliation provisions and the provisions rendering certain contractual arrangements void extend to cooperation by the whistleblower with an investigation by the OSC, a recognized self-regulatory organization or a law enforcement agency and to judicial proceedings and proceedings of the OSC or of a recognized self-regulatory organization.
The breadth of the new statutory provisions may be of concern to issuers and other stakeholders, who warned in comment letters when the OSC Program was initially proposed that the anti-retaliation measures might leave employers without an appropriate remedy to deal with employees who had themselves engaged in misconduct or had not complied with internal policies, including policies requiring internal reporting.
The Ontario Act’s new provisions do not include a new civil right of action of whistleblowers against employers who violate the anti-retaliation provisions of the Ontario Act, which the initial proposal indicated might be included in the legislative changes.