As it officially opened its Office of the Whistleblower, the Ontario Securities Commission (OSC) also unveiled the final version of OSC Policy 15-601 – Whistleblower Program (Policy), which provides the framework for the OSC’s whistleblower program (Program) under which whistleblowers may be able to receive monetary rewards of up to C$5-million for providing information about violations of securities laws to the OSC.

The Policy follows a year-long consultation process that saw an initial round of comments on the basic structure of the Program and a further round of comments on a consultation draft of the Policy.

The Policy provides for the payment of rewards of up to C$1.5-million even then the OSC has not recovered any funds from wrongdoers, and the Policy does not require whistleblowers to use available internal reporting mechanisms, despite concerns raised about these (and other) aspects of the Program throughout the consultation process.

REWARD

  • If a whistleblower provides the OSC with information that leads to an administrative penalty or a settlement with an order to pay more than C$1-million in monetary sanctions, the Policy permits the OSC to provide a financial reward of up to 15 per cent of the monetary sanctions to the whistleblower
  • A reward of up C$1.5-million can be provided regardless of whether the OSC actually collects any of the monetary sanctions
  • If the OSC recovers monetary sanctions in excess of C$10-million, then the reward cap increases to C$5-million (though the reward remains subject to the cap of 15 per cent of the amount actually recovered)

Analysis: The prospect of the OSC paying rewards of up to C$1.5-million from its general revenues prompted concern that the Program would increase costs for compliant issuers because it would force compliant issuers to bear the costs of non-compliance by other issuers by subsidizing the Program’s payouts.

ELIGIBILITY

  • To be eligible for a reward under the Program, a whistleblower must have voluntarily provided “original information” that is of “high quality”, that contains “sufficiently timely, specific and credible facts” relating to an alleged violation of Ontario securities law and that provides meaningful assistance to OSC staff
  • People who refuse to cooperate with the OSC after initially providing information; people who obtain information in connection with the provision of legal, audit or assurance services; and people who were directors or officers of the entity that is the subject of the information are (subject to certain exceptions) ineligible for a reward under the Policy
  • Certain categories of initially excluded persons — including directors and officers, those who obtain information in the course of providing legal services or conducting the legal representation of their employer and those who obtain information in connection with the provision of audit or assurance services — may be eligible for a reward in any of the following situations:
    • They have a reasonable basis to believe that disclosure of the information is necessary to prevent conduct that is likely to cause or continue to cause substantial injury to the financial interest or property of the entity or of investors
    • They have a reasonable basis to believe the subject of the information is engaging in conduct that will impede an investigation of the misconduct
    • 120 or more days have elapsed since the whistleblower provided the information to the audit committee, chief legal officer or chief compliance officer of the subject entity or the individual’s supervisor

Analysis: During the comment phases, many commenters criticized the Program for not requiring whistleblowers to use available internal reporting and compliance processes as a condition of eligibility. The Policy “encourages” whistleblowers to use internal compliance and reporting mechanisms to report suspected misconduct but does not require them to do so.

Eligibility of Lawyers

  • Although no rewards are available for information subject to solicitor-client privilege, the Policy provides that both lawyers in private practice and in-house counsel are eligible for rewards under the Program in respect of information disclosed to the OSC if the applicable provincial or territorial bar or law society rules would permit disclosure of such information

Analysis: During the comment process, the Law Society of Upper Canada, among others, expressed concern about this provision, warning that it would create a “real risk of confusion and possible error” because it incorrectly suggests that there are situations in which law society rules would permit lawyers to act as whistleblowers against their own clients.

Furthermore, as outlined above, the Policy provides that in-house lawyers could be eligible for a reward even where they make a disclosure that is not permitted under applicable law society rules.

ANTI-REPRISAL PROVISIONS

  • In connection with the establishment of the Program, the Securities Act (Ontario) (Ontario Act) was amended to provide whistleblowers protections against reprisals.
  • The new provisions contain broad prohibitions on reprisals against employees who see advice about providing, express an intention to provide or do provide information about conduct that they reasonably believe is contrary to Ontario securities law or a by-law or other regulatory instrument of a recognized self-regulatory 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-reprisal protections 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 participation in judicial proceedings and proceedings of the OSC or a recognized self-regulatory organization.

Analysis: During public consultations, commenters expressed concern that anti-reprisal 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.

ANONYMOUS REPORTING

  • Whistleblowers may submit information anonymously if the whistleblower is represented by a lawyer and the lawyer makes certain submissions and declarations (however, to collect a reward, a whistleblower who reported information anonymously will have to provide his or her identity to the OSC to confirm the whistleblower’s eligibility)

For more detail on the Policy and the Program and the comments received during the consultation process, please see our previous Blakes Bulletins: