Employees in Ontario can soon expect to be protected from anti-retaliatory measures in connection with whistleblowing activities. As part of the Ontario Budget Measures Bill 173,which received royal assent on April 19, 2016, the Ontario government has approved amendments to the Securities Act (Ontario) (OSA) that are intended to implement protection for reprisals against employees who provide information about a possible contravention of Ontario securities law, or a by-law or other regulatory instrument of a recognized self-regulatory organization (SRO), or who are involved in an investigation or proceeding related to the information provided.
Prohibition on reprisals
More specifically, the new provisions prohibit persons or companies from taking a reprisal against an employee who has sought advice about providing information, expressed an intention to provide information or provided information to the person or company, the Ontario Securities Commission (OSC), a recognized SRO or a law enforcement agency about an act of the person or company that has, is or will occur that the employee believes is contrary to Ontario securities law. The amendments will also provide protection for employees who cooperate, testify or otherwise assist in an investigation or proceeding of the OSC, self-regulatory organization, law enforcement agency or judicial proceeding or who express an intention to do so.
A “reprisal” will be defined in the OSA as any measure taken against an employee that adversely affects his or her employment. Examples of such actions include:
- Ending or threatening to end the employee’s employment;
- Demoting, disciplining or suspending, or threatening to demote, discipline or suspend an employee;
- Imposing or threatening to impose a penalty related to the employment of the employee; or
- Intimidating or coercing an employee in relation to his or her employment.
Importantly, the OSA will also be amended to include a provision which effectively voids any provision in an agreement between an employer and an employee which precludes or purports to preclude the employee from providing information to the OSC, a recognized SRO, or a law enforcement agency, or from cooperating or assisting with an investigation or a proceeding.
As previously discussed, in October 2015, the OSC published for comments OSC Policy 15-601 Whistleblower Program (Proposed Policy), which was intended to encourage individuals to report information on serious securities- or derivatives-related misconduct to the OSC. The Proposed Policy included anti-retaliation protection and the OSC indicated that Staff intended to recommend legislative amendments to the OSA which would provide protection to whistleblowers against retaliation by their employer. The Proposed Policy was open for comments until January 12, 2016.
The amendments are expected to come into force upon proclamation of the Lieutenant Governor. For further information, please see Bill 173, Jobs for Today and Tomorrow Act (Budget Measures), 2016.