Employers should be aware that there are broad protections for employees that report wrongful acts committed by their employer. These protections are set out in various statutes and typically prevent an employer from taking any disciplinary measures against an employee for reporting wrongdoing, including demoting, suspending, dismissing, harassing or intimidating an employee. In addition to statutory protections for reporting wrongdoing, other statutes afford protections to employees when they try to enforce their rights under particular statutes. This article sets out the types of protections that exist for employees, and particularly, private sector employees in Ontario.
The Criminal Code of Canada was amended in June 2003 to protect employees who disclose information to a law enforcement agency about their employer. These amendments were in response to corporate scandals in the U.S. such as Enron, WorldCom, Tyco and ImClone. Unlike other statutes which target specific offences, the Criminal Code whistle blowing provision applies to federally or provincially regulated employees that report any type of unlawful conduct committed by their employer. It is an offence for an employer to take disciplinary measures in order to compel an employee to abstain from providing information to a law enforcement agency or to retaliate against an employee for providing such information.
There are several environmental statutes that provide whistleblowing protection to employees. The Canadian Environmental Protection Act, 1999 (“CEPA”) has general application to federal lands, works, and undertakings. It is an offence for any employer (federally or provincially regulated) to take reprisals against an employee who, among other things, voluntarily reports a release of a toxic substance or an alleged offence under CEPA or declares his or her intention to comply with CEPA. Both the Ontario Environmental Protection Act and Ontario Environmental Bill of Rights provide express protection to employees who complain that their employer has violated environmental protection laws.
Employers cannot dismiss, discipline, penalize or intimidate an employee for complying with environmental legislation.
The Competition Act is federal law governing most business conduct in Canada. It contains both criminal and civil provisions aimed at preventing anticompetitive practices in the marketplace. The purpose of the Competition Act is to regulate competition in Canada and address issues such as telemarketing, pyramid schemes, pricefixing etc. It is an offence for any employer to in any way disadvantage an employee that acts in good faith and reports to the Commissioner that the employer has, or intends, to commit an offence under the Competition Act.
The Employment Standards Act, 2000 (“ESA”) sets out the minimum standards for working in Ontario. It is an offence for an employer to intimidate, dismiss, or otherwise penalize an employee for, among other things, asking the employer to comply with the ESA, exercising a right under the ESA, filing a complaint against the employer, or testifying in a proceeding under the ESA.
The Ontario Human Rights Code (“Code”) protects individuals in Ontario against discrimination, including in employment. The Ontario Pay Equity Act (“PEA”) addresses discrimination in compensation for work performed by employees in female job classes. Both statutes prohibit employers from taking reprisals against a worker because the worker has sought its enforcement.
The Ontario Labour Relations Act, 1995 (“LRA”) governs collective bargaining between employers and trade unions. The LRA makes it an offence for either the employer or union to take action negatively impacting a person’s employment, against a person who has made a complaint under the LRA or who testifies in a proceeding under the LRA.
The Ontario Personal Health Information Protection Act, 2004 (“PHIPA”) governs the manner in which personal health information may be collected, used or disclosed, by “health information custodians”, which includes physicians and hospitals. PHIPA also applies to employers if they are “recipients” of personal health information i.e. given personal health information by a health information custodian. PHIPA prohibits retaliation against any employee who reports a contravention of PHIPA to the Information and Privacy Commissioner.
The Personal Information Protection and Electronic Documents Act (“PIPEDA”) applies to personal information about employees if the employer operates a “federal work, undertaking or business”. However, it also applies to the collection, use and disclosure of personal information by all organizations in the course of their commercial activities, which would include provincially regulated employees. Employers are prohibited from taking reprisals against employees for reporting to the Commissioner that their employer has contravened or intends to contravene PIPEDA.
Finally, the Ontario Occupational Health and Safety Act (“OHSA”) sets out the rights and duties of all parties in the workplace. Its main purpose is to protect workers against health and safety hazards in the workplace. The OHSA prohibits employers from taking reprisals against a worker because the worker has complied with the OHSA, sought its enforcement, or given evidence in a proceeding brought under the OHSA.
In addition to the above, some regulatory authorities recommend the adoption of whistleblowing policies by their members or by industry. For example, the Ontario Securities Act, Corporate Governance Guidelines indicate that reporting issuers “should” adopt a written code of business conduct and ethics that addresses, among other things, reporting of any illegal or unethical behaviour.
For the most part, whistleblowing provisions protect employees that have a bona fide belief that their employer has or will commit an offence. However, these provisions are not intended to protect employees who report in bad faith. Employers should ensure that any interaction between the employer (or those acting for the employer) and employee cannot be interpreted as reprisals against an employee, where an employee has enforced his or her rights to “blow the whistle” in accordance with any of the applicable legislation.