The Ontario Securities Commission (the “OSC”) has now reported that in the month and a half since its rollout, its Office of the Whistleblower has received more than 30 tips reporting potential violations of securities laws. Although the OSC’s “bounty for tips” Program is still in its early days, it appears that it has already generated significant take-up among would-be whistleblowers seeking a payout. The largest Canadian securities commission hopes that the numbers demonstrate the potential for the Whistleblower Program to lead to an increasing number of enforcement proceedings. The Program and the high level of interest it has generated underscore the need for companies to take proactive steps to detect and manage internal problems before they become the subject of a tip reported by a whistleblower through the Program’s hotline.
As we have previously discussed, the OSC launched its widely-anticipated Whistleblower Program on July 14, 2016. The Program incentivizes individuals to come forward with information on securities-related misconduct by promising rewards of up to $5-million for reporting corporate misconduct that leads to a successful enforcement action.
Although the Whistleblower Program itself does not provide any protection against reprisals for whistleblowers, the Ontario Securities Act was amended in conjunction with the introduction of the Program to prohibit retaliation by employers against employees for reporting securities violations (as well as against employees who express their intention to report such violations). Those same amendments voided confidentiality provisions that precluded or purported to preclude employees from such reporting.
Developments Since Inauguration of Program
In a speech delivered to the Toronto Region Board of Trade on September 27, 2016, OSC Chair Maureen Jensen stated that the Whistleblower Program had received over 30 tips since its inauguration.
Ms. Jensen added that “[s]ome of them are the kinds of tips that we really wanted — serious offences or serious potential offences in areas that we would never be able to find, such as misstatements in accounting and disclosure violations.” She also noted that these tips detailed the kinds of securities laws violations that the OSC has been targeting in its enforcement actions.
The Program has only just begun operation, and it remains to be seen if the tips received by the OSC will result in more enforcement actions being commenced and, ultimately, in more sanctions being imposed. While the massive awards on the scale paid to American whistleblowers under the SEC’s program are precluded by the $5-million cap imposed under Ontario’s Program, the potential nevertheless exists for considerable payments to be made to whistleblowers in Canada. One implication, as previously discussed, could be an accelerated shift in the role of the OSC from a body utilizing remedies that aim at prevention and protection to one more focused on seeking and administering financial sanctions as a significant regulatory tool.
Against this backdrop, it is critical for companies to have in place a strong controls system and corporate culture in order to detect potential problems as early as possible and to protect employees who come forward to report those problems internally. A robust approach to internal compliance is the best defence against the increasingly real risk that boards and management will first hear about serious misconduct within their organizations from the OSC as a result of a whistleblower tip.